Summary: We uphold complaints made on behalf of ‘Ms D’ and ‘Ms E’ that the Council inappropriately rejected their complaints made about children services because it said they made those complaints too late. Fault in those decisions caused Ms D and Ms E injustice as it denied them access to the complaint procedure and caused them unnecessary frustration, time and trouble. During our investigations the Council took action that we consider remedied this injustice. So, we have completed our investigations.

The complaint

1. Ms B, a representative, complains on behalf of ‘Ms D’ and ‘Ms E’. She complains the Council wrongly refused to investigate their complaints because they involved events that were more than 12 months old.
2. Ms B says as a result the Council denied Ms D and Ms E potential redress for failings by Council children services when they were under 18. Failings, which she says have an ongoing impact on them, as it affects the service they receive as young adults.
3. This complaint follows an earlier complaint made to us by Ms B on behalf of ‘Mr C’. This raised similar concerns (see 23 005 162 - Local Government and Social Care Ombudsman).

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We may decide not to continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
7. 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

8. Before issuing this decision statement, I considered:

• Ms B’s written complaints to the Ombudsman and the supporting information she provided;
• correspondence exchanged between Ms B and the Council on behalf of Ms D and Ms E, which pre-dated our decision to investigate;
• subsequent correspondence between Ms B and the Council during the investigations;
• information provided by the Council in response to written enquiries and at a meeting with officers from its children services;
• any relevant law, national guidance or Ombudsman guidance referred to in the text below.

9. I gave Ms B and the Council a chance to comment on a draft version of this decision statement. I took account of any response received before issuing this final decision statement.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted) in advance of publication on our website.

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What I found

Relevant law and guidance

11. The law sets out a three-stage procedure for councils to follow when looking at complaints about children social care services (‘the statutory complaint procedure’). The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains council responsibilities in more detail. We have also published practitioner guidance on the procedures, setting out our expectations. https://www.lgo.org.uk/assets/attach/6015/Children-s-Stat-Complaints-Updated-Nov-23.pdf
12. The first stage of the procedure is ‘local resolution’. Councils have up to 20 working days to respond.
13. If a complainant is not happy with a council’s stage one response, they can ask for it to go to stage two of the procedure. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint. They must also appoint an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
14. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
15. A stage two investigation should complete within 25 working days, although guidance allows an extension for up to 65 working days where required.
16. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
17. ‘Getting the Best from Complaints’ explains a council ‘need not’ accept a complaint made more than 12 months after the events complained about. But it explains this is at its discretion. The guidance says it should decide on a case-by-case basis, but there should be a presumption in favour of accepting a complaint unless there is a good reason not to. This is if it is possible to consider the representations effectively and efficiently.
18. The guidance also says councils may consider if it would be unreasonable to expect the complainant to have made the complaint earlier. It says grounds for accepting a complaint made after one year might include:

• genuine issues of vulnerability;
• where the local authority believes there is benefit in the complaint proceeding; or
• where there is likely to be sufficient access to information and individuals involved at the time.

Chronology of Ms D’s complaint

19. Ms B complained to the Council in July 2023, on behalf of Ms D. She explained Ms D left her family home in 2019 when she was under 18 years old. She had stayed for a time with a friend before approaching the Council as homeless. The Council then found a place for Ms D in a hostel. Ms B said before doing this the Council had failed to properly explain to Ms D the difference between this accommodation and living in foster care under Section 20 of the Children’s Act 1989. But even so, within days Ms D changed her mind and asked the Council to provide her with accommodation under Section 20 - a request the Council had failed to act on.
20. Ms B said as a result, the Council did not consider Ms D a ‘former relevant child’ and she had lost out on services available to former care leavers. These included having a personal adviser and a pathway plan. Ms B asked the Council to now provide these services. Also, that it now support Ms D with re-housing as she faced eviction from the hostel. Ms B also asked the Council to consider making an apology to Ms D and provide financial redress for the impact of its failings.
21. In August 2023 the Council replied saying it had considered the complaint under the statutory complaint procedure. It said that it had closed Ms D’s social care file more than five years ago. It noted it had discretion to accept Ms D’s complaint under the statutory complaint procedure but said it would not do so because of the passage of time. The letter did not explain its reasons.
22. Later that month Ms B contacted this office, asking us to investigate. In doing so, she asked us to consider:

• that Ms D was under 18 during the events complained about;
• that any fault by the Council caused Ms D an ongoing injustice as the Council did not consider her a ‘former relevant child’;
• that Ms D had other vulnerability;
• that it remained practical for the Council to investigate Ms D’s complaint as it would still have records from the time of events.

Chronology of Ms E’s complaint

23. Also in July 2023, Ms B made a complaint on behalf of Ms E. She explained that Ms E became homeless aged 16 when she had to leave the family home. Ms B said the Council had, in 2018, placed Ms E in foyer accommodation. Ms E remained living there but had a notice to quit.
24. Ms B said the Council had provided records showing it gave Ms E a choice between this accommodation and foster care. But she said it had framed the choice of foster care, made under Section 20 of the Children’s Act, in a negative way. Also, that it had failed to explain to Ms E the implication of choosing one over the other, as Government guidance suggests. She said it failed to explain to Ms E that if she accepted accommodation under Section 20 this might have potential benefits to her. Because she would then become a ‘former relevant child’ with entitlement to Council services beyond her eighteenth birthday.
25. Ms B said as a result, the Council did not consider Ms E a ‘former relevant child’ and she had lost out on those services available to former care leavers. Ms B asked the Council to now provide these services. Also, to support Ms E with re-housing given her pending eviction. Ms B also asked the Council to consider making an apology to Ms E and provide financial redress for the impact of its failings.
26. In August 2023, on the same day it wrote to Ms B about Ms D’s complaint, the Council replied. Its letter noted that it had closed Ms E’s case file almost five years ago. It noted it had discretion to accept Ms E’s complaint under the statutory complaint procedure but said it would not do so because of the passage of time. The letter did not explain its reasons.
27. In September 2023, Ms B asked us to also investigate Ms E’s complaint. She said:

• that Ms E was under 18 during the events complained about and did not know of her rights during that time;
• that any fault by the Council caused Ms E an ongoing injustice as the Council did not consider her a ‘former relevant child’;
• that it remained practical for the Council to investigate Ms E’s complaint as it would still have records from the time of events.

Complaint on behalf of Mr C (23 005 162)

28. In July 2023 Ms B made a complaint to us on behalf of Mr C. She had complained to the Council in May 2023. Ms B explained that in March 2020, after he had to leave home, the Council’s children services had provided ‘foyer’ type accommodation for Mr C. He moved from there into a hostel and then rental accommodation in the private sector.
29. 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.
30. 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. 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 ‘Getting the Best from Complaints’.
31. We upheld the complaint, finding the Council had not considered Mr C’s case in line with the statutory complaint procedure. In particular, it could not show that it had taken account of the Government guidance referred to in paragraphs 17 and 18 above. We considered Mr C unfairly disadvantaged as a result.
32. The Council accepted these findings. It agreed to apologise to Mr C and make a symbolic payment for the avoidable time, trouble and frustration caused. It also agreed to learn lessons from the complaint. It agreed to brief relevant officers on our expectations when it assessed complaints about children services, that invited consideration of events more than 12 months previously.

Events during these investigation

33. During our investigation of these complaints, the Council, noting our findings in Mr C’s case, said that it would:

• now investigate the complaints in line with the statutory complaint procedure. It went on to send a reply to Ms D and Ms E under stage one of the procedure. They later requested investigation at stage two. While not fully upholding either complaint the Council offered to meet with Ms D and Ms E saying that moving forward, it ‘may’ treat them each as a ‘former relevant child’ (although in reply to our enquiries the Council said it was treating Ms D and Ms E each as a ‘former relevant child’);
• pay Ms D and Ms E £250 each in recognition of their time and trouble, following its initial rejection of their complaints.

34. Further, the Council has now provided us evidence to show it has complied with the actions agreed following our decision on Mr C’s complaint.
35. I also asked the Council to provide me with data on complaints made to its children services from April 2022 onward. It said that throughout this time the only complaints it had rejected because it considered them late complaints, were those made on behalf of Mr C, Ms D and Ms E. Ms B has subsequently drawn my attention to a fourth case the Council rejected on the grounds of time in early April 2022. Although in that case the Council also suggested the complainant had an alternative legal remedy.
36. The Council also told us that as well as the specific steps agreed following our investigation of Mr C’s complaint, it had taken other steps to improve its complaint handling. It has set up a social worker academy where it takes learning from complaints and uses this for training at staff briefings. It had delivered one briefing to highlight the key messages from Mr C’s case. It said its complaint officers also met with senior social work staff to revise staff guidance following our investigations.

Findings

37. This complaint concerns the Council’s approach to complaints it receives under the statutory procedure about events more than 12 months previously. It is not my role to substitute my discretion for that of the Council, which must decide whether to investigate such complaints. But I must be satisfied the Council reached an administratively sound decision. In both Ms D’s and Ms E’s case, the Council took its decisions with fault because it:

• did not show it had considered the individual facts of each case; it sent an identical letter to both;
• did not provide reasons for its decision not to exercise discretion to investigate;
• could not show what account it gave to both complainants being under 18 at the time the events complained about occurred. Its decisions did not explore any potential vulnerability then or now. Nor did the decisions explore whether Ms D or Ms E could access the complaint procedure at the time events took place;
• did not show if it had considered the potential benefit of investigating. The complaints raised an important issue of policy around children and young people receiving information around their rights if offered accommodation under Section 20 of the Children Act. They potentially exposed a significant injustice to Ms D and Ms E if, as suggested, the Council did not properly explain those rights. Which in turn would imply a wider flaw in Council policy or procedure around this issue;
• did not show it had considered the practicality of any investigation and whether it had records enabling investigations to take place.

38. These faults caused Ms D and Ms E injustice. First, by denying a potential investigation into their complaints, the Council also denied them the possibility of redress. However, I welcome that it reconsidered its position following the decision we took on Mr C’s case. It will now ensure consideration of the complaints through the statutory complaint procedure, which has begun. I am satisfied this remedies this injustice.
39. A second injustice was the Council’s handling of this matter caused avoidable frustration, time and trouble to Ms D and Ms E. I welcome that the Council has offered a symbolic payment to each, to recognise that injustice. I find this in line with our published guidance on remedies and so I am satisfied it has also remedied this injustice.
40. I have not found evidence the Council has rejected further complaints inappropriately because of the passage of time. I find no grounds to think this problem widespread although I welcome Ms B making me aware of one other case, with similarities to those of Mr C, Ms D and Ms E. I also welcome the Council taking steps to learn wider lessons from the complaints made by Ms B, which make any repeat less likely.
41. Given the factors set out in paragraphs 38-40 I do not consider any more can be achieved through further investigation of these complaints that will benefit Ms D or Ms E. Nor do I consider further investigation will result in any wider learning for the Council given it has already made service improvements.

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Final decision

42. Consequently, I have completed my investigation of these complaints. I find fault by the Council caused injustice to Ms D and Ms E, but this has now been satisfactorily remedied.

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Investigator's decision on behalf of the Ombudsman