• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: The Council was at fault for a delay to its investigation of Ms X’s complaint. But, in the context of her overall complaint about its complaint-handling, the fault was limited. The Council properly considered the complaint, made adjustments to its process in light of her communication difficulties, and generally acted in accordance with its statutory responsibilities. Nonetheless, it will take action to recognise Ms X’s injustice from the delay.

The complaint

1. The complainant, whom I refer to as Ms X, makes various complaints about how the Council dealt with a complaint she made on behalf of her son, Y.
2. Specifically, Ms X complains that:

1. There were significant delays in the Council’s complaint-handling.
2. The Council failed to resolve everything she complained about – including issues with how it conducts assessments – and did not address all recommendations arising from the complaint.
3. She accidentally used an incorrect term when agreeing the statement of complaint. She referred to the Council’s ‘SEND panel’ instead of its ‘social care panel’. At no point did the complaint investigator ask her to clarify this.
4. The investigator based his decision solely on information from the Council. He did not give Ms X the opportunity to provide her own evidence. She was not involved in the investigation at all after agreeing the statement of complaint.
5. The investigator failed to refer to procedure and guidance.
6. She did not receive the Council’s stage 2 complaint response letter until she chased this up five months later. When she did so, it took the Council a further month to provide the letter.
7. The Council refused to make adjustments to its process to support her. This meant the stage 3 review panel hearing was inaccessible to her. She could not attend, make submissions or connect to the meeting online. It went ahead without her and her supporter (who was not allowed to attend without her).
8. The Council’s complaints manager – with whom Ms X had long-standing negative experiences – attended the panel hearing. Among other things, her past involvement in Ms X’s (and other) complaints created a conflict of interest. She should not have been there.
9. The Council’s policy for children’s complaints is not consistent with statutory guidance (with regard to stage 2 timescales). It erroneously requires an agreed statement of complaint before the investigation starts.

3. Ms X says the Council’s failure to deal with her complaint properly caused her distress.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way a council made its decision. If there was no fault in how the council made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with a council’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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I considered:
   • Information from Ms X and the Council.
   • Relevant government guidance and council policy.
   • Previous Ombudsman decisions.
9. Ms 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

The Council’s responsibilities

The Children Act 1989 (statutory) complaints procedure

10. The statutory guidance, ‘Getting the best from complaints’, sets out a three-stage procedure for complaints about certain aspects of children’s social care. I refer to this as ‘the statutory procedure’.
11. The following time limits apply for Councils to respond to these complaints:
    • Stage 1: 10-20 working days.
    • Stage 2: 25-65 working days.
    • Stage 3: 50 working days.
12. Stage 2 of the procedure starts when the complainant requests it in writing. If they do this verbally instead, the ‘clock’ starts when a written record of the complaint is agreed. If the complainant subsequently amends the written record, the start of stage 2 will be delayed until the amended record is agreed.
13. It is good practice for stage 2 investigators to offer the complainant a meeting to clarify the complaint and their desired outcomes. However, the guidance sets out no need to involve the complainant in the investigation following this meeting.
14. Councils should consider whether they need to support complainants to attend stage 3 review panel hearings. This is particularly important for complainants with communication difficulties.
15. Written material about the complaint should be provided to panel members no later than ten working days before the hearing. If anything is submitted later than this, the Chair will decide whether or not to accept it.
16. The complainant has a right to attend the panel and the council should assist them to do so if necessary. They are also entitled to be accompanied by another person and for this person to speak on their behalf. The panel can proceed in the complainant’s absence at their request.
17. The council’s complaints manager and anyone else providing administrative support should also attend the panel.

The Council’s complaints policy

18. The Council’s policy, among other things, sets out how it applies the statutory guidance’s timescales to stage 2 complaints made either verbally or in writing. The wording of the policy is the same as that in the guidance.

The Equality Act 2010

19. This Act provides a legal framework to protect the rights of individuals. It offers protection in the provision of services and the carrying out of public functions.
20. It is unlawful for organisations carrying out public functions to discriminate on any of nine protected characteristics, including disability.
21. Public bodies have a duty to make ‘reasonable adjustments’. These help a disabled person to use a service to a standard as close as it is reasonably possible to get to that usually offered to non-disabled people.
22. Service providers are under a proactive duty to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

23. Ms X complained to the Council in December 2020. She raised several issues, primarily about how the Council had assessed Y’s needs (and hers, as Y’s carer).
24. The Council responded in January 2021. But Ms X remained unhappy, and, in February, asked to escalate the complaint to stage 2 of the statutory procedure.
25. The Council appointed an investigator, but they had to withdraw. So, in March, a new investigator was appointed. He met Ms X and formed a written record of the complaint. She agreed this – and signed it – in May.
26. The points of complaint were similar to those in Ms X’s stage 1 complaint. Two of them were about how the Council’s panel made decisions about Y’s social care provision. The complaint record refers to this panel as the ‘SEND panel’.
27. The investigator completed his report in September. He upheld large parts of the complaint, and recommended apologies and staff training.
28. Parts of the complaint were, however, not upheld (with reference to relevant evidence). This included the complaints about the Council’s ‘SEND panel’. The investigator noted that the SEND panel has no role in social care decisions.
29. The Council wrote its adjudication letter to Ms X in October. It made the apologies recommended by the investigator. It did not mention staff training.
30. The Council appears to have posted this letter. Its internal emails from the time state its intention to do so. Ms X says she did not receive the letter.
31. The following March (2022), Ms X told the Council that she was still waiting for its stage 2 complaint response. The Council re-sent the letter by email in April.
32. In early June, Ms X asked to escalate her complaint to stage 3 of the statutory procedure. She agreed to a ‘virtual’ meeting.
33. Ms X also asked the Council to make a ‘reasonable adjustment’ to its process under the Equality Act. This was that the Chair of the panel “work with me and my advocate / supporter so that we can ensure my communication needs are met”.
34. The Council confirmed that Ms X and her advocate would have the opportunity to meet the Panel Chair before the hearing.
35. Ms X asked the Council to support her to arrange an advocate. It agreed, and it sent her a list of organisations. However, she then asked to postpone the hearing. She said she did not have enough time to find and meet an advocate (and provide her written submissions) before the hearing. The Council agreed.
36. In July, the Ombudsman responded to a different – albeit very similar – complaint from Ms X (22 003 911). This was partly about the Council’s handling of her requests for reasonable adjustments up to that point. We said:

[The Council] has recently sent Mrs X details of advocacy services in the area, and asked her to contact it if she needs further support in arranging an advocate. Having considered this point I am satisfied that the Council has taken account of its duties under the Equality Act 2010 in its communications with Mrs X, and it is therefore unlikely we would find fault.

37. In August, Ms X asked for another reasonable adjustment: that she was given extra time to respond to correspondence. She said she was on holiday. The Council agreed and said it would wait to hear from her in September.
38. In September, Ms X asked the Council to part-fund an advocate for her (again, as a reasonable adjustment). But the Council refused. It said it had already provided adequate support to help her find an advocate. It said it was very unusual for none of the organisations it had identified to be able to help a complainant.
39. The Council also said it had arranged a new date for the panel hearing – in late November. Ms X said it should not arrange a hearing until she had an advocate, as without one the hearing would be inaccessible to her. The Council told her she had had a reasonable amount of time to arrange this. It also directly contacted two advocacy services and told Ms X that either would be happy to help her.
40. In November, Ms X told the Council that she had found someone who would attend the hearing with her (although this would be for emotional support, rather than advocacy). The Council offered to part-fund an advocate, but she said no advocates had answered her correspondence.
41. The Council told Ms X that, although the deadline for written submissions had passed, the Chair of the panel might agree to extend this (to four working days before the hearing). But Ms X said she would not be making a written submission.
42. In the evening before the hearing, Ms X provided a written submission. This was received by the Council the following morning, right before the hearing. The Chair refused to accept it, saying there would be no time to properly consider it.
43. There were some technical issues at the start of the hearing, which appear to have been resolved. Ms X then raised concerns about how the hearing had been arranged by the Council’s complaints manager (who was in attendance). She said she was not emotionally able to participate further. She agreed to the hearing continuing in her absence.
44. The Chair sent the panel’s report to Ms X later the same month, and, in December, the Council responded. The panel and the Chair broadly agreed with the conclusions drawn by the investigator at stage 2 of the statutory procedure.
45. However, the Council also said that, since Ms X had made her complaint:
    • She had been given the link for obtaining a parent carer assessment.
    • A ‘child in need’ plan had been issued to support Y.
    • The Council’s policies on case recording and on seeking consent had been updated.
    • Children’s and adult social care services were working together to deliver staff training on neurodiversity.

My findings

Complaint A: Delays

46. The Council’s stage 1 response was issued without delay.
47. The stage 3 response was significantly late. But the mitigating circumstances (which I will consider later) were so extensive that this did not amount to fault.
48. However, the stage 2 response was over four months late. The Council was at fault for this delay, which likely caused Ms X an injustice. It should now take action to recognise that injustice.

Complaint B: Was all of Ms X’s complaint properly dealt with?

49. Every complaint Ms X raised at stage 1, and subsequently at stage 2, was considered and answered by the Council – with the exception of the complaints about its social care panel’s decision-making (which I will consider later).
50. Most of these complaints were upheld, and the remaining complaints were answered in a reasonable manner with reference to relevant case records.
51. The Council accepted and, apparently, implemented the stage 2 investigator’s recommendations. Although the staff training recommendation was not mentioned in the stage 2 adjudication letter, it was mentioned in the stage 3 response. The stage 3 response also mentioned various other actions the Council had taken to improve the service it delivered to Ms X and Y.
52. Consequently, it is unclear what obvious injustice remains to Ms X or Y. And service improvements are for councils to decide, not the Ombudsman. The Council has certainly considered how to improve its service and has made suggestions. Time will tell whether these are effective.
53. Certainly, there is nothing, in relation to the way the Council addressed Ms X’s complaint, which would amount to fault.

Complaint C: ‘SEND’ panel vs. ‘social care’ panel

54. It appears the stage 2 investigator considered the complaints exactly as they were made, and found that the SEND panel had no role in Ms X’s complaint.
55. This finding is likely to have been correct. But it meant there was no interrogation of Ms X’s actual complaint, which was apparently about the social care panel (although she used the wrong word).
56. I can understand why Ms X was unhappy with this. And it would not have been illogical for the investigator to contact her once it became clear that she – someone who was apparently quite familiar with SEN and social care procedure – had referred to a panel which had absolutely nothing to do with her complaint.
57. However, this was a judgment call by the investigator, and it appears (according to Ms X’s account) that he chose not to speak to her to clarify the complaint. Instead, he investigated the statement of complaint which had been formed in consultation with her, and which she had then checked and signed.
58. This was not so unreasonable a decision that it amounted to fault – even if a different investigator may have chosen to act differently.

Complaint D: Ms X’s involvement in the stage 2 investigation

59. It is not for the Ombudsman to tell an independent investigator exactly how to do their job. But we do expect them to have regard to the good practice suggested in the statutory guidance, and only to depart from it if there are good reasons.
60. The guidance recommends that investigators meet the complainant, discuss the complaint and their desired outcomes, and form a written record of the complaint.
61. All of this happened. And the decision not to involve Ms X from that point on was a matter of judgment by the investigator, which I have no grounds to question.

Complaint E: The investigator’s consideration of relevant procedure

62. I have not identified any procedural analysis which was missing from the investigation report, and which would have been obviously likely to make a difference to the outcome.
63. It was for the investigator to decide how to reach findings. We can criticise councils if an investigator’s consideration of evidence and procedure is obviously unsatisfactory. But this does not appear to have been the case. So I have found no fault with the Council on this point.

Complaint F: The stage 2 adjudication letter

64. It is not clear why the Council decided to post the stage 2 adjudication letter, rather than emailing it. But it was not necessarily at fault for doing so.
65. The Council’s emails at the time say it intended to post the letter. I am satisfied that this is likely what happened. I cannot say why Ms X did not receive it.
66. After Ms X asked the Council for the adjudication letter in April 2022, it re-sent the letter without significant delay.
67. There was no fault in how the Council sent this letter to Ms X.

Complaint G: Reasonable adjustments

68. It is not for the Ombudsman to tell councils what adjustments they must make. Nor is it our role to decide what would or would not be ‘reasonable’ (unless a council makes a decision which is so irrational that it defies logic).
69. Instead, we expect councils to consider disabled people’s circumstances, and any requests for adjustments, and make decisions on how to deliver services to those people. These decisions must, of course, be made in line with the councils’ statutory responsibilities, including under the Equality Act.
70. We have already, in a previous decision, considered the Council’s offer of communication support to Ms X early on in the stage 3 process, so I do not intend to comment on this further.
71. Later on in the process, the Council:
    • Considered Ms X’s request for extra time to deal with things and allowed her a considerable amount of time (five months) to arrange an advocate.
    • Considered her request for part-funding of an advocate, but refused, and explained why (although it subsequently changed its mind).
    • Provided additional details about potential advocacy services.
    • Offered her a virtual meeting.
    • Made clear that she would have the opportunity to meet with the Chair in advance of the hearing.
72. Ms X was unhappy with the Council’s decisions on these things. But I am satisfied that it considered its duties to her under the Equality Act, and acted reasonably, so was not at fault.
73. Ms X was well aware of the deadline for her stage 3 written submission in advance, and had, in fact, had almost six months to prepare this. She submitted it the evening before the hearing. The Chair decided this was not enough time to review the submission, and he rejected it. This does appear to have been an unreasonable decision.
74. Although there were technical issues, it appears these were resolved. Ms X declined to participate further, but she agreed to the hearing carrying on without her. It is not obvious that Ms X’s supporter, whose role was to provide emotional support to Ms X, would have had a reason to attend the hearing without her.
75. None of these matters amounted to fault by the Council.

Complaint H: The Council’s complaints manager

76. Councils’ complaints managers have a statutory role under the guidance and are required to attend panel hearings (which they are primarily responsible for organising). This is unaffected by whether the complainant wants them there.
77. Furthermore, it would be unreasonable to expect the Council’s complaints manager not to have been involved with Ms X’s previous complaints.
78. Because of this, there was no fault in the manager being at the hearing.

Complaint I: The Council’s policy

79. The relevant part of the Council’s policy – which refers to a stage 2 investigation beginning with the written statement of complaint – is about verbal complaints.
80. Not only did this not apply to Ms X, but the paragraph in question is copied verbatim from the statutory guidance. This is not fault by the Council.

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Agreed action

81. Within a month, the Council has agreed to:
    • Apologise to Ms X for the delay to its stage 2 investigation of her complaint.
    • Make a symbolic payment of £100 to recognise any distress she may have experienced from the delay.
82. The Council will provide us with evidence it has done these things.

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Final decision

83. The Council was at fault for a delay to its handling Ms X’s complaint; however, in the context of her overall complaint, the fault was limited.

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Investigator's decision on behalf of the Ombudsman

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