Summary: Mr X complained the Council failed to properly investigate a complaint he raised about its Children’s Services Department. He complains the Council discriminated against him, blamed him for its errors and failed to follow relevant guidance. We did not find the Council was at fault. However, we found some of its communication could have been better.

The complaint

1. Mr X complains the Council failed to properly investigate a complaint he raised about the Council’s Children's Services Department. Mr X complains the Council:
• Stole his right to an investigation under the statutory children’s complaints process.
• Failed to follow the guidance ‘Getting the Best from Complaints’.
• Discriminated against him, gaslighted him and blamed him for its own failings.
• Failed to offer mediation.
2. Mr X stated that he had been caused immense anguish by the Council’s actions and no nearer to getting his daughter the help she needed.

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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. I spoke to Mr X, considered the complaint he made and comments he provided. I made enquiries of the Council to ask it for information, I considered information the Council provided.
6. Mr 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

Equality Act 2010

7. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
8. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010.

Reasonable Adjustments

9. The Equality Act 2010 states that where a practice or service provided places a disabled person at a substantial disadvantage in comparison with those who are not disabled, reasonable steps should be taken to avoid the disadvantage. It also states that where a disabled person would be put to a substantial disadvantage ‘but for the provision of an auxiliary aid’, reasonable steps should be provided to provide that aid.
10. The reasonable adjustment duty set out in the Equality Act applies to any organisation which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to getting to the standard usually offered to non-disabled people.
11. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
12. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Statutory Children’s Complaint Process

13. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
14. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond at this stage.
15. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
16. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
17. 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.

‘Getting the Best from Complaints’ Guidance

18. The guidance explains the three stages of the complaints process. It says, in most circumstances, complaints should be considered at Stage One in the first instance. The guidance notes that after a complaint has been accepted at Stage One, the complainant is entitled to pursue the complaint further through Stages Two and Three.
19. Paragraph 3.1.1 of the guidance states that local authorities should attempt to resolve complaints and address representations as soon as reasonably practicable and where there is agreement from the child or person making the complaint, the local authority may arrange for mediation to help resolve matters.
20. Paragraph 3.4.3 of the guidance states that the local authority should also consider how to meet the varying needs of complainants. This should be particularly important in relation to complainants whose first language is not English and those with communication difficulties.
21. Paragraph 3.6.2 states, if a complaint has been submitted orally, the Complaints Manager must ensure that the details of the complaint and the complainant’s desired outcome are recorded in writing and agreed with the complainant. This may be achieved either by correspondence or by meeting the complainant to discuss it, followed by a written record of what was agreed. The Council may wish to do this in conjunction with the Investigating Officer and Independent Person appointed to conduct Stage Two.

Early Referral of Complaints

22. Where complaints meet the criteria for consideration under the Statutory Complaints procedure, the Ombudsman would normally expect a council and complainant to follow this process in full before we would consider investigating. We produced guidance for Councils which makes clear that the Ombudsman will generally not consider the early referral of a complaint (i.e. a complaint that has not completed all stages of the statutory process). However, we may exercise discretion to do so in some circumstances. We may also agree to exercise discretion to consider a matter where a complainant comes to us at other stages of the process.

What Happened

23. What follows is not intended to be an exhaustive chronology of everything that happened. It sets out the key events in Mr X’s complaint.
24. On 17 May 2023 Mr X made a complaint to the Council about a Child in Need (CiN) assessment report the Council had written about his daughter. He complained the social worker who authored the report had not properly applied the framework for the assessment of children and their families.
25. On 23 May the Council acknowledged the complaint and initially proposed investigating under its Corporate Complaints Process. I understand the complaint was passed to a social worker (Officer A) to start the investigation. Mr X complained about this the same day because he sought an investigation under the Statutory Children’s Complaints Process.
26. On 25 May the Council contacted Mr X, apologised for logging the complaint as a Corporate Complaint and agreed to use the Statutory Children’s Complaints Process.
27. On 31 May the Council advised Officer A the complaint was no longer to be a Corporate Complaint. Officer A had begun drafting a letter to Mr X (mostly seeking further information). This was not issued to him because Officer A’s investigation under the Corporate Complaint process had stopped.
28. On 1 June Mr X asked to go straight to Stage Two of the statutory process as he considered the initial use of the wrong process was deliberate.
29. The Council agreed to escalate the complaint straight to Stage Two and on 25 June 2023 an Independent Investigating Officer (IO) contacted Mr X to introduce themselves and check that his email address could be used for communications about the complaint. In initial correspondence with the IO and IP, Mr X stated that he was disabled and this may affect the way he communicated. He stated he required all meetings with the IO/IP to be video meetings which were recorded. He asked if they would arrange that.
30. The IO’s response asked what reasonable adjustments Mr X needed them to make in order to take account of his disability. The IO asked if Mr X’s partner had any need of adjustments. On the issue of video recording, the IO stated they did not have the facility to do this and asked why it was needed. The IO stated if Mr X wished to record their meetings, he would need to advise them beforehand but neither the IO or IP would be happy with that, unless it was a requirement to assist with Mr X’s disability.
31. On 26 June Mr X responded commenting that his partner was disabled but did not need reasonable adjustments to be made. Mr X shared the details of his disability and the symptoms. These included forgetfulness, organisational challenges, careless mistakes or missed details and difficulty with attention. He shared some NHS internal guidance that noted patients/service users may find it helpful to record meetings so they could refer back to it later. He stated he was dismayed the Council had not told the IO and IP that he was disabled and would need adjustments.
32. In correspondence with the IO and complaints manager, the IP reflected that Mr X’s needs were about communicating, processing information and needing an aide memoire. They suggested, a way to ensure Mr X had control would be for him to write down the details of the complaint and send it to them. The IO/IP could then write back to clarify anything. The IP suggested this may avoid any concern about remembering what was said in a meeting. Emails on the Council’s records indicate that the IO and IP spoke to the Council’s Complaints Manager regarding Mr X’s requests.
33. The Council told us the discussion between the IO/IP and the Complaints Manager was brief and not documented. The Complaint’s Manager set out that the Council does not force officers to consent to being recorded, and it would not require an IO/IP to be recorded. Where an officer does not wish to be recorded, the Council offers an alternative, which the Complaint’s Manager noted the IO and IP had done in this case.
34. The IO subsequently told Mr X that she had discussed his email with the IP and, given Mr X’s disabilities, they felt it would be best for him to write down the complaints for them and give them his desired outcomes. The IO stated Mr X could take the time needed and provide evidence and details of the concerns he had. The IO stated they felt this would give Mr X the best opportunity to do this at his own pace and take account of any communication difficulties. They hoped this would meet any reasonable adjustments he needed. The IO stated neither she or the IP would give permission for a video recorded interview.
35. Mr X sent an email headed ‘Letter Before Action’ in response explaining his concern that the IO and IP should not be telling disabled people what they feel is best. Mr X stated he found their behaviour outrageous and he suggested they withdrew and underwent relevant training.
36. On 27 June Mr X complained that the IO and IP had failed to understand the requirements of the Equality Act and the way they responded to his request for reasonable adjustments was discriminatory.
37. On 28 June the IO and IP decided they could not take the complaint forward and stepped away.
38. The Council responded to Mr X’s complaint about the IO and IP on 5 July. After speaking to the IO and IP and reviewing correspondence, the Council stated it found that neither the IO or IP were attempting to discriminate against Mr X. The Council stated they believed they were trying to provide an alternative adjustment to meet Mr X’s needs. This was because neither wished to be video recorded. The Council did not agree the email sent to Mr X breached the Equality Act. However, the Council stated Mr X’s concerns had been raised with them.
39. The Council commented on its approach to reasonable adjustments. The Council stated it anticipated that some residents required reasonable adjustments to be made and it changed working practices, where it could, to avoid disadvantages for disabled people. It stated it would always ask people what their requirements are and seek to agree reasonable action to take.
40. The Council stated, in Mr X’s case it was offering to interview him about his Childrens’ Services Complaint. It noted Mr X had requested video recording of meetings. However, it stated he had not stated why that was needed. The Council acknowledged Mr X had sent a list of symptoms to the IO and IP, but it had not set out why he was a substantial disadvantage because of his disability and why recording a meeting overcame this. The Council stated once it knew this it would need to determine if the requested adjustment of recording the interview or some other adjustment was reasonable to avoid the disadvantage.
41. The Council stated, at Mr X’s request, it had appointed a new IO and new IP to investigate the complaint. Once Mr X had provided the details requested about his need for video recording, the Council would consider whether video recording would be a reasonable adjustment the Council should make. The Council stated if it would also be helpful for Mr X to have the benefit of an advocate, the Council could arrange a referral for this.
42. The Council’s letter also set out its Equality Officer’s comments on the matter. The Equality Officer commented on the wording used by the IO/IP. She thought the wording used was unfortunate because she had stated she knew what was best for Mr X rather than working with him to come to an agreement, given that the IO/IP did not want to be recorded.
43. Mr X spoke to the Council’s Equality Officer about the letter and her use of the word ‘unfortunate’. In a note of the conversation, the Equality Officer stated she admitted to Mr X that the comment made by the IO was wrong. However, in the full context of the conversation between them and because the IO was trying to find a suitable solution in good faith, it was not discrimination, just that her choice of wording was poor.
44. Mr X sent an email to express concerns about the response to his complaint on 6 July. He stated the letter deliberately set out to avoid censure of the Independent Investigators for discriminating against him. He noted the Equality Officer’s comments and questioned the use of the work ‘unfortunate’. Mr X considered this showed the IO and IP’s actions were wrong. He stated the response deflected from what had happened and victim blamed him for asking for the recorded meeting. He asked the Equality Officer to explain her comments and why there was no apology for the discrimination they had suffered. He asked that his concerns were added to the Stage Two investigation of the original complaint.
45. A new IO and new IP were appointed by the Council.
46. In August, Mr X told the complaints officer that information obtained from a Freedom of Information Act request indicated that false allegations had been made against him, by or to the Multi-Agency Safeguarding Hub (MASH). These new points needed to be included in the complaint investigation.
47. I understand a copy of Officer A’s unsent Corporate Complaint letter to Mr X was provided to the new IO and new IP to set out some work that had been started on the complaint. Mr X became aware of this and was concerned about why it was written given the complaint should have been considered through the Statutory Process. He made further complaint to the complaints manager about this and requested a meeting to discuss the apparent response to the complaint through the wrong process that he had not seen.
48. The complaints manager responded to Mr X’s concerns. The Council confirmed the Corporate Complaint Investigation had ceased and the new IO and new IP were now dealing with Mr X’s complaint. It stated Mr X needed to work with the new IO and new IP to agree a statement of complaint and allow the IO to investigate. The Council stated Mr X needed to follow the correct process and engage with them, rather than to try and lead the investigation. If Mr X chose not to do this, the Council would withdraw them and refer him to the Ombudsman.
49. Mr X disagreed he was attempting to lead the investigation and he set out his view that the IO and IP needed to have sufficient qualifications to investigate a particular issue that he wished to include in the complaint. He asked for evidence they were suitably qualified in this area.
50. The new IO and IP told the Complaints Manager that they had a discussion with Mr X about not bringing in new information, and although they had agreed to bring in some points, they agreed he was trying to lead the investigation. They considered the way forward was to refer Mr X to the Ombudsman. The Council told Mr X it was withdrawing the IO and IP as a result and referred him to the Ombudsman.
51. Mr X commented to us that he considered the Council did not engage in mediation with him or keep this under review as events occurred. The Council commented that it does use mediation where appropriate. However, it considered Mr X was always very clear in his view and could be reluctant to consider the view of the professional who was communicating to him. It commented that officers respected Mr X’s viewpoint and the Council did not consider it was productive to attempt to change his mind. When taking this approach, the Council took account of the information Mr X shared about how his disability affected him.

Was there fault by the Council

52. Mr X’s complaint to the Ombudsman is about the way the Council dealt with the complaint he raised and about reasonable adjustments he requested. It is not an investigation into the original complaint itself.
53. The crux of Mr X’s complaint is that the Council failed to follow Getting the Best from Complaints Guidance resulting the loss of his right to an investigation under the statutory children’s complaints process. Mr X also considered the way he was dealt with represented discrimination and the Council gaslighted him and blamed him for its own failings. He also complained the Council failed to offer mediation.

Was there a failure to follow Getting the Best from Complaints’ guidance.

54. When Mr X first brought his complaint to the Council it proposed an investigation under its corporate complaints policy. It allocated a reference number under this policy and allocated someone to consider the complaint.
55. Mr X’s complaint related to an assessment of his daughter and related matters. These were issues that met the criteria for investigation under the Children’s Statutory Complaints Procedure. So, the initial proposal to use a non-statutory complaint process was incorrect. Mr X told the Council the wrong process was being used and challenged it the same day.
56. The Council responded within two days. It accepted it had been incorrect and agreed to use the statutory process. Given the Council remedied the issue very promptly when Mr X raised it, and proceeded to use the Statutory Complaints Process, I have not found the initial proposal to use the wrong process constituted fault by the Council. It also did not cause any significant injustice to Mr X.
57. Generally, the statutory process would involve attempts to resolve the matter informally at Stage One. However, once a complaint has been accepted at Stage One, a complainant may request escalation. In this case the Council agreed to escalate the complaint straight to Stage Two at Mr X’s request, rather than look at the complaint at the local resolution stage. This was in accordance with Mr X’s wishes and it was open to the Council to agree to this.

Mediation

58. Getting the Best from Complaints guidance states where appropriate, and with agreement from the person making the complaint, a council may arrange for mediation to help resolve matters. It refers to this as a method by which a complaint may be resolved without a full investigation and something which should be considered at the outset, as part of the local resolution stage of the process (Stage One). It notes that mediation has to be agreed by both the complainant and the Council.
59. Although the Getting the Best from Complaints guidance refers to mediation being used at the informal resolution stage of the process, I recognise Mr X considered that mediation could have been considered at any part of the process. While I recognise that it may be used, the guidance also makes clear that both parties have to agree to mediation. The Council told us it did not consider mediation would be appropriate in Mr X’s case. It explained its reasons. The Council is entitled to reach this view and it’s decision does not represent fault.

Discrimination

60. I have considered the dealings Mr X had with the Council and both sets of Independent Investigating Officers (IOs and IPs) and considered his view that the Council acted in a discriminatory way towards him, and later that the Council blamed him for the process breaking down.
61. Mr X initially told the IO/IP that he required all meetings with them to be video recorded. The IO’s initial response asked Mr X what reasonable adjustments he needed to make to take account of Mr X’s disability, and asked why meetings needed to be recorded.
62. I found Mr X’s description of his disability and what he sought as adjustments on 26 June was clear. Mr X told the Council what his disability was and set out the symptoms. He stated he needed adjustments around communicating and processing information and this is why he requested the recording of meetings.
63. When the IO and IP responded, they stated they declined the adjustment Mr X requested (recording meetings). The IO stated ‘given your disabilities, we feel it would be best for you to write the complaints for us and give us your desired outcomes’. They stated communication in writing would give Mr X ‘the best opportunity to [provide information] at his own pace, and ‘take account of any communication difficulties’.
64. Every person’s disability or combination of disabilities is likely to be different and may affect or disadvantage them differently. The Equality Act does not define what reasonable steps have to be taken, instead it requires organisations to consider if someone has a substantial disadvantage as a result of a disability and, if so, to take reasonable steps to avoid that disadvantage.
65. There is evidence that the IO and IP had noted Mr X’s disability and that it affected his ability to communicate and process information.
66. It was not fault in principle for them to decline to take part in recorded video calls, provided any substantial disadvantage Mr X had could be overcome in another way. The IO and IP had proposed an alternative; communication in writing, rather than holding a meeting. So, I consider they had recognised Mr X had rights under the Equality Act and recognised there was a need to consider adjustments. There was no fault in this respect.
67. However, I found the communication and approach from the IO and IP could have been better. The wording of the IO’s email about what was best for him, was paternalistic. Also, when rejecting recorded meetings, the IO could have sought more detail from Mr X about what his specific needs were before suggesting that written communication was best. I say this because when responding to a complaint from Mr X about the encounter, the Council later stated it would always seek to discuss someone’s requirements with them to reach agreement on what was needed and to understand their difficulty. It commented that Mr X’s description of his needs to the IO (on 26 June) was only a list of symptoms as opposed to stating what substantial disadvantage he had and why recorded meetings overcame this. When responding to the complaint, the Council listed possible reasonable adjustments as suggestions for Mr X to consider. Had this more open approach of been taken by the IO and IP at the outset, it is possible a mutually agreed way forward for meeting Mr X’s RAs may have been reached.
68. I also consider it was also open to Mr X to propose other alternatives himself in response to the IO and IP’s proposal to conduct the complaint in writing. This too, could have enabled the complaint to proceed.
69. On balance, I found that there was no failure by the Council to consider its duties under the Equality Act. The IO’s communication with Mr X could have been better, however, I do not consider it serious enough to make a finding of fault.
70. I found no fault in the way the second IO and IP approached Mr X’s complaint. I understand that there was a disagreement over the scope of the complaint. Mr X sought to add new issues to the investigation that appear to have arisen from receipt of a Subject Access Request (SAR) from the Council. The IO/IP sought to define the complaint that Mr X had already raised with the Council rather than include new issues. This was not fault by the Council.

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Final decision

71. I found no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman