Summary: We found fault in the way the Council carried out its duties in relation to the complaints about the Council’s children services. This fault did not cause injustice to the individual complainants. The Council agreed to review its documents to ensure compliance with the legislation, review current complaints about the children’s services and train its staff dealing with complaints.

The complaint

1. This complaint was created using our powers under Section 26D of the Local Government Act 2974 to investigate a potential impact of the misleading content of the Council’s document “Complaints and Representations Procedure” on the service users who complained about the Council’s children’s services. This matter came to our attention during our investigation of the complaint 22 017 769.

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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 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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)
5. 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

6. I made enquiries with the Council and considered the information it provided.
7. I reviewed the Council’s “Complaints and Representations Procedure” from October 2013 and the Council’s “Annual Complaints Compliments Report Children Services 2022/2023”. I also referred to our Guide for practitioners “Children’s statutory complaints process” updated in 2023 (the Guide).
8. 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

Legislation

9. The guidance ‘Getting the best from complaints’ Social Care Complaints and Representations for Children, Young People and Others (Guidance) is based on the Children Act 1989 Representations Procedure (England) Regulations 2006. Only in exceptional circumstances councils can justify a variation from this document.
10. The Guidance specifies:
• which complaints should be considered under children’s statutory complaints procedure;
• who can complain;
• process and timescales for considering complaints.
11. A complaint may be defined as an expression of dissatisfaction or disquiet in relation to an individual child or young person, which needs a response. (Getting the Best from Complaints Guidance paragraph 2.1.3)
12. The guidance lists who may complain using the statutory procedure. As explained in our Guide for practitioners “Children’s statutory complaints process” the council does not need consent from the child or young person to investigate a complaint from a person on this list. However, it may need consent from the child or young person to disclose information about them to the person making a complaint.
13. Councils must consider representations including complaints made to them by:
• Any child or young person (or a parent of his or someone who has parental responsibility for him) who is being looked after by the local authority or is not looked after but is in need;
• Any local authority foster carer;
• Persons wishing to adopt a child, adopted persons, their parents, natural parents and former guardians;
• Such other person as the local authority consider has sufficient interest in the child or young person’s welfare. (Getting the Best from Complaints Guidance paragraph 2.6.1)

Facts

14. The Council’s Annual Complaints Report 2022/2023 states:
1. ‘The procedure for dealing with children’s statutory complaints (those raised by or on behalf of children relating to the Council’s Social Care Services) and representations is determined by the following legislation: The Children Act 1989, Representations Procedure (England) Regulations 2006 and The Children & Adoption Act 2002 and Children (Leaving Care) Act 2000 and the accompanying guidance ‘Getting the Best from Complaints’ (DfES July 2006)’. (paragraph 1.2)
2. ‘The Statutory Complaints and Representations procedure serves four main purposes:
1. To provide a way for a child/young person, or a person acting on their behalf, to give their views of the service they have received.
2. To enable Council services to learn from complaints and compliments and to change, review or maintain its services accordingly.
3. To ensure that complaints are properly recorded and acted upon and that where necessary, things that have gone wrong are put right promptly.
4. To ensure that both staff and service users understand their rights and responsibility within the complaints process.’ (paragraph 2.1)
15. The Council said that in the last 12 months the complaint 22 017 769 was the only one considered at stage one under the children’s statutory complaint process where the Council had refused to pass it to the next stage. It happened because the Council could not obtain consent from the complainant’s child, who was assessed as competent under the Gillick test. We found the Council was wrong to do so.
16. The Council told me that when it had considered children’s complaints under the corporate complaints process and complainants remained unhappy, the Council had passed each of these complaints to stage two. It did not happen in six cases where the complainants failed to provide additional information or to specify details of why they were still not satisfied.
17. I received a list of all the children’s services complaints considered under the Council’s corporate process from October 2022 until November 2023. Out of these I have reviewed the Council’s final responses for 32 complaints. I did not find any refusals to consider or escalate complaints because of the lack of consent from a child or a young person.
18. A few of the complaints considered by the Council under its corporate complaint procedure were about contact arrangements, the way the Council carried out assessments of children’s needs or a transfer of the child’s records to another council. In some of them the Council decided the complainants either did not have sufficient interest or were not deemed to act in a child’s best interest. They were all concluded at stage one.

Analysis

19. The Council’s documents relating to the children’s statutory complaint procedure suggest the Council does not have regard to the independent right of certain individuals to have their complaint about children’s services considered under the children’s statutory procedure. To be considered under the children’s statutory procedure a complaint does not have to be brought by a child or a young person or somebody acting on their behalf, as the Council’s documents suggest.
20. There are three criteria the Council should apply when deciding which complaint procedure should be used:
• What is complained about; as indicated in the Guide complaints about assessments and services for children in need, looked after children, Special Guardianship support and post-adoption support should generally be considered under the children’s statutory complaint procedure;
• Who complains; see paragraph 13 of this decision;
• Is the complaint about the discharge of the council’s functions in relation to a child.
21. Looking at the Council’s corporate complaint responses in a sample of 32 cases, I found that some of them should have been considered under the children’s statutory rather than corporate complaint procedure. This applies to the ones about child and family assessments, transfers of the children’s services records to another council and contact arrangements for parents and family members to spend time with the children. In a few of them the Council decided the persons who complained did not have sufficient interest in a child’s welfare or did not act in their best interest.
22. The Council’s failure to apply the children’s statutory complaint procedure in some of the reviewed cases is fault. I did not find, however, that it caused injustice to the people who complained as they did not ask for their complaints to be considered at stage two. This suggests the complainants were satisfied with how the Council addressed their concerns.
23. During my investigation I found the lack of consistency in the Council’s published documents about individuals who should have their complaints considered under the children’s statutory complaint procedure and in the Council’s approach to individual complaints. This requires service improvements.
24. During my investigation of the complaint 22 017 769 the Council said it was reviewing the ‘Complaints and Representations Procedure’ issued in October 2013 and would amend paragraph 4.1 and other parts of the policy which might be misleading.

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Agreed action

25. The Council has agreed within six months of my final decision to complete the following:
• Review all the Council’s documents which refer to the children’s statutory complaint procedure and ensure they include a list of individuals, other than children and young people or anybody acting on their behalf, who have the right to have their concerns considered through the children’s statutory complaint procedure;
• Review all current complaints about the children’s services which are being considered as corporate complaints and decide whether they should be investigated as children’s statutory complaints;
• Provide training to the staff dealing with children services complaints with a particular focus on the criteria for deciding whether a particular complaint should be considered under the children’s statutory complaint process.

The Council should provide us with evidence it has complied with the above actions.

26. The Council has also agreed for six months following this decision to record its reasons for considering each complaint about the Council’s children services under either children’s statutory procedure or corporate complaint process. The Council will provide us with the evidence it has done this.

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Final decision

27. I found fault in the way the Council has carried out its duties in relation to the complaints about the Council’s children services. This fault did not cause injustice to the individual complainants. The Council has accepted my recommendations for service improvements, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman