Summary: Ms X complained the Council delayed carrying out a child and family social care assessment of her disabled son and has failed to put social care provision in place since September 2022. We found the Council had failed to investigate Ms X’s complaint under the children’s statutory complaints procedure. It has agreed to investigate the complaint under stage 2 of the statutory procedure without delay.

The complaint

1. Ms X complained the Council:
• Delayed carrying out a child and family social care assessment of her son.
• Has failed to put social care provision in place since September 2022.
• Delayed replying to her complaint.
2. This has affected her son’s wellbeing and caused her significant distress 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 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)
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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What I have and have not investigated

6. I have investigated how the Council dealt with Ms X’s complaint. I have not investigated the substantive issues she has complained about.

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How I considered this complaint

7. I spoke to Ms X about her complaint and considered the Council’s response to my enquiries and:
• The Children Act Representations Procedure (England) Regulations 2006 (“the Regulations”)
• Getting the best from complaints, Statutory guidance for local authorities on children’s services complaints procedures 2006 (“the Guidance”)
8. 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 statutory children’s complaints process

9. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
10. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
11. 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 days of the date of request, and then issue a final response within 20 days of the panel hearing.
12. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Early referrals to the Ombudsman

13. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The Guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
14. If both parties agree and the complaint has been upheld, the Ombudsman can deal with the complaint without the third stage. The Guidance also says that someone can complain to the Ombudsman at any time. The Ombudsman might exercise discretion to investigate in certain but rare circumstances.
15. The Ombudsman has published a focus report highlighting common failings in the way councils deal with complaints that are within the remit of the children’s statutory procedure. In 2021 we issued further guidance for practitioners setting out our expectations on how statutory complaints should be handled and managed. These clarified that the Ombudsman would be unlikely to accept complaints brought early unless the early referral criteria had been met.

What happened

16. Ms X’s son, W, is disabled. Ms X requested a child and family assessment of W when the family moved into the Council’s area in September 2022. The referral was accepted by the Council on 12 October 2022. The assessment should then have been completed within 45 working days (i.e. by 14 December 2022).
17. Ms X complained to the Council on 14 November 2022 about issues relating to W’s education, health and care plan. She also complained that the child and family assessment had been delayed and W had no social care provision in place.
18. The Council responded on 5 December. In relation to W’s social care, it said the assessment was due to be completed by 9 December. On 21 December, Ms X asked for the complaint to be escalated.
19. The child and family assessment was completed on 8 February 2023 but Ms X remained unhappy as social care provision is not yet in place. She came to the Ombudsman.
20. Ms X complained again on 28 June 2023 about the delay in the assessment and the fact that no social care provision was in place, as she had had no stage 2 reply.
21. The Council replied on 4 July 2023 and sent a final, stage 2 reply on 22 August 2023 under its corporate complaint procedure. Ms X remains dissatisfied and made further complaints about social care provision on 9 September 2023.

My findings

22. Ms X has complained about social care support which would be provided to her child under Part 3 of the Children’s Act 1989. She is therefore entitled to an investigation under the statutory children’s complaints procedure.
23. I have considered whether this should have been started when she complained in November 2022. My view is that it was not fault to not commission an independent stage 2 investigation at that stage because the assessment was still underway. It should have been processed when Ms X requested escalation on 21 December 2022.
24. When Ms X made a new complaint on 28 June 2023, the Council used its corporate complaints procedure. This was fault. I am satisfied the matter complained of should be considered through the statutory children’s complaints process. The complaint does not meet the criteria of an early referral to the Ombudsman as there has not yet been a stage 2 investigation.
25. The Council did not proceed with Ms X’s September 2023 complaints as the case was with the Ombudsman. I do not find fault as the matters complained of are linked to her original complaint.
26. The fault has caused Ms X an injustice as her complaint has not been properly considered. A second stage investigator able to carry out interviews and view files on site is better placed than the Ombudsman to deal with matters now.
27. If Ms X is still dissatisfied after the stage 2 investigation and both parties agree, she can bring these matters back to the Ombudsman. Alternatively, if either party requires the third panel stage and Ms X is still dissatisfied after that, she can bring these matters back to us then. In either case, she should so within 12 months of the date of our final decision unless there is a good reason why she cannot do this.

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Agreed action

28. Within one month of my final decision the Council has agreed to make the necessary arrangements to begin a stage 2 investigation and contact Ms X to notify her of the arrangements and the process that will be followed.
29. The Council should provide us with evidence it has complied with the above actions.

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Final decision

30. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman