Summary: The Council was at fault for refusing to investigate a complaint about its children’s services because of the passage of time. This denied the complainant their right to access the statutory complaint procedure and put them to unnecessary time and trouble. The Council accepts these findings. At the end of this statement, we set out action it has agreed to take to remedy this injustice.

The complaint

1. Ms B, a representative, makes a complaint on behalf of Mr C, a young adult. Ms B complains the Council failed to provide Mr C with accommodation under Section 20 of the Children’s Act 1989, from March 2020 onward. She further complains that when she asked the Council to investigate this complaint, under the statutory complaint procedure for complaints about children’s services, it declined to do so because of the passage of time.
2. Ms B says as a result Mr C has not received any redress for the failure by the Council to accommodate him under Section 20. Nor has the Council properly investigated his complaint.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. Before issuing this decision statement, I considered:

• Ms B’s written complaint and the supporting information she provided;
• correspondence exchanged between Ms B and the Council raising Mr C’s complaint and its response;
• relevant law and statutory guidance;
• relevant guidance published by this office including our guidance on remedies.

6. I also gave Ms B and the Council chance to comment on a draft version of this decision statement. I took account of any submissions they made before finalising this decision statement.
7. We have an information sharing agreement with the Office for Standards in Education, Children’s Services and Skills (Ofsted). Under the terms of that agreement, we will share this decision statement with Ofsted before its publication on our website.

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What I found

Key facts

8. Ms B complained to the Council, on behalf of Mr C, at the beginning of May 2023. Ms B explained that until around October 2018, when he was fifteen years old, Mr C lived with his mother. Their relationship experienced a breakdown and Mr C had to leave her home. At first Mr C lived in foster care, then returned to live with his mother for a time, and then his grandmother, before having to leave her home around March 2020. The Council provided a social work service to Mr C throughout this time and Ms B says at this point it arranged for Mr C to move into ‘foyer’ type homeless accommodation. He moved from there into a hostel and eventually rental accommodation in the private sector.
9. Ms B said that despite a Council social worker supporting Mr C with this succession of moves, it did not provide him with accommodation under Section 20 of the Children’s Act 1989. Nor did it tell Mr C of his right to receive accommodation under Section 20. Ms B said these actions had a significant negative impact on Mr C’s life. They had caused him to leave education and to find paid work, so he could pay his rent. Also, that hostel accommodation had negative impacts on his mental health.
10. Ms B asked the Council to remedy Mr C’s complaint by undertaking a series of actions, including:

• making an apology;
• providing him with leaving care support as a ‘former relevant child’ with immediate effect; (the term ‘former relevant child’ refers to adults aged between 18 and 25 who were looked after by the Council as teenagers subject to certain conditions about at what age that was and for how long);
• supporting him with education and training goals as part of a pathway planning process; (a pathway plan being something a former relevant child has an entitlement to);
• providing him with financial redress.

11. By the end of May 2023, the Council had contacted Mr C. It had carried out an assessment of his needs and agreed to treat him as a former relevant child. It assigned him a personal adviser. It agreed to support him in applying for accommodation from the Council’s housing register.
12. However, the Council declined to investigate the complaint about not providing Mr C with accommodation under Section 20 of the Children’s Act. Its letter said that to do so was contrary to Government guidance contained in a document called ‘Getting the Best from Complaints’. This explains the statutory procedure for investigating complaints made by children or young people that engage with the Children’s Act 1989.
13. The Council said this guidance prevented it investigating Mr C’s complaint because it was late. It then summarised an extract from the Local Government Act 1974 (which sets out the Ombudsman’s powers) on the subject of ‘late complaints’. It said: “late complaints are when someone takes more than 12 months to complain to us about something a council has done”. It also suggested Mr C should speak to his legal adviser (a reference to Ms B and the service she represents) who could advise him on “compensation and personal injury”.

My findings

14. I have first considered the Council’s decision to refuse to investigate Mr C’s complaint under the statutory complaint procedure. I have identified three significant concerns with that.
15. First, the Council has taken an irrelevant consideration into account. The Local Government Act 1974 applies to the Ombudsman’s powers to investigate. It is not legislation that places limits on the Council’s powers to investigate a complaint. The Council should not quote it therefore in giving reasons for rejecting a complaint because it considers it out of time.
16. This is not to say the Council cannot use the passage of time to reject a complaint. ‘Getting the Best from Complaints’ explains the Council ‘need not’ accept a complaint made more than 12 months after the events complained about. But it makes it clear this is a discretionary decision. The guidance lists several relevant considerations to such a decision. My second concern in this case is the Council has taken a selective approach to the guidance, and not considered the following extracts:

• that “decisions need to be made on a case by case basis and there should generally be a presumption in favour of accepting the complaint unless there is good reason against it”;
• “the time limit can be extended at the local authority’s discretion if it is still possible to consider the representations effectively and efficiently”;
• “local authorities may also wish to consider if it would be unreasonable to expect the complainant to have made the complaint earlier. For example, where the child was not able to make the complaint earlier […]”;
• “possible grounds for accepting a complaint made after one year are: genuine issues of vulnerability [or] where the local authority believes there is benefit in the complaint proceeding [or] where is likely to be sufficient access to information and individuals involved at the time” (my emphasis).

17. I consider all the above extracts relevant to Mr C’s case given that:

• the events Ms B complains about do not go back many years. The beginning of the events complained about is March 2020 and not 2018 as the Council said. Because while Ms B included potentially relevant details of Mr C’s case history from 2018, she did not make a complaint about the service Mr C received at that time. I consider the Council should have records dating three years and individuals involved in the case may still work for the authority;
• the decisions and actions Ms B complains about began when Mr C was under 18. She has explained his lack of knowledge of Section 20 of the Children’s Act at the time. So, his awareness that he may have cause to complain could only arise after he learnt of this, sometime after March 2020. This suggests Mr C, as a child or young person, could not make a complaint sooner;
• further, in May 2023 Ms B was complaining also about an ongoing failure by the Council to consider Mr C a ‘former relevant child’. Even if the Council considered part of Mr C’s complaint late, it could not refuse to answer why it did not treat him as a former relevant child at the date Ms B made the complaint;
• I note here the Council has now agreed to provide Mr C with support as a former relevant child. That development, aligned with the serious suggestion the Council failed to tell Mr C of his right to be accommodated under Section 20, suggests there would be benefit in the Council investigating the complaint;
• finally, there are considerations about vulnerability. First, because of Mr C’s, age - especially at the time the events covered by the complaint began. Second, there is the statement that Mr C’s mental health has suffered because of his living conditions over recent years.

18. I do not find the Council weighed any of the above in its decision not to investigate Mr C’s complaint.
19. My third concern centres on the Council introducing the suggestion Mr C might pursue a personal injury claim for compensation instead, given Ms B is a legal adviser. It can be relevant for the Council to consider if a complaint more properly engages with an alternative form of redress through the Courts. Government guidance makes this point. However, the fact a complainant asks for a financial payment as part of a remedy to their complaint, does not on its own suggest they wish to make a personal injury claim.
20. In its decision the only factor the Council cited for why it considered Mr C should go down the path of a personal injury claim was to seek ‘compensation’. But ‘financial redress’ (which is what Mr C asked for – not compensation) is something the Council can consider as part of the statutory complaint procedure. Section 6.4 of Getting the Best from Complaints explains this. It says that where a complaint is upheld, the Council should consider making a financial remedy and gives multiple examples where this might be appropriate.
21. I consider this combination of concerns justifies a finding of fault. Because combined, they do not show a proper consideration of the merits of investigating Mr C’s complaint, despite the passage of time.
22. This fault has caused Mr C an injustice. He has been denied access to a complaint procedure, which potentially offers an opportunity for the Council to resolve a complaint. He has experienced unnecessary time and trouble in being required to contact this office to escalate his complaint.
23. In considering how the Council should remedy this injustice I recommended the Council progress Mr C’s complaint through the statutory procedure. I considered this fairer than simply asking the Council to look again at Mr C’s request. Because I considered on the balance of probabilities a proper examination of Mr C’s request could only lead to the finding it should be investigated.
24. Before recommending this, I also considered if we should investigate the issues at the crux of the complaint, without asking Mr C to complete the statutory complaint procedure. However, I did not consider this an appropriate use of our resources. This is because the statutory complaints procedure offers the potential for a thorough investigation of Mr C’s complaint.
25. The procedure has three stages. The first is a response to the complaint from the children’s services department concerned. The second stage is an investigation and report carried out by someone independent of the department and with independent oversight. The third stage is a Review Panel. The Panel comprises independent people.
26. There are strict timescales for responses at each stage. Mr C should receive a stage one response within 10 days of complaining. If he asks for his complaint to go to stage two, the investigation should take no more than 65 days. If the investigation unavoidably exceeds these deadlines, the Council should seek Mr C’s agreement to this.
27. If Mr C asks for a stage three Review Panel, then it should meet within 30 days of the request. Afterwards, the Panel must provide its report within five working days and the Council then has 15 working days to respond to its findings.
28. So, the statutory procedure offers multiple opportunities to achieve a satisfactory outcome to the complaint. And failing that, Mr C will still have recourse to the Ombudsman who can consider any outstanding dissatisfaction.

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Agreed action

29. To remedy Mr C’s injustice, the Council has agreed that it will now commence investigation of Mr C’s complaint, without delay, under the statutory complaint procedure.
30. In addition, within 20 working days of this decision, the Council has agreed to:
1. write to Mr C with an apology for earlier rejecting his complaint. This apology will be in line with Section 3.2 of our published guidance on remedies;
2. make a symbolic payment of £150 to Mr C for the unnecessary time and trouble it has put him to.
31. Finally, the Council has also agreed to learn lessons from this complaint. Within 20 working days of this decision, it has agreed to brief relevant complaint officers of our expectations about the following:
1. that when the Council assesses complaints about children’s services, that invite consideration of events more than 12 months previously, the consideration about whether these complaints are potentially out of time for investigation must take account of all relevant statutory guidance. This in turn will involve consideration of the specific facts of the case and consideration of the complainant’s age or potential vulnerability when events took place;
2. that when a complaint invites the Council to provide a financial remedy, any consideration about whether this suggests the courts might provide a more suitable remedy, must take account of relevant statutory guidance on ‘financial redress’.
32. The Council must provide us with evidence it has complied with the above actions.

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Final decision

33. For reasons set out above I have upheld this complaint finding fault by the Council causing injustice to Mr C. The Council has agreed to take action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman