Summary: Miss X complains the Council did not carry out the agreed actions from its stage three review of her complaint and did not provide a remedy for the injustice caused. Miss X says this has caused further distress. The Ombudsman finds fault with the Council for failing to consider and provide a suitable remedy for the fault found during the statutory complaints process. The Council has agreed to pay Miss X a financial remedy and carry out service improvements.

The complaint

1. Miss X complains the Council has failed to carry out the action plan from the stage three complaint.
2. Miss X complains the Council has also failed to remedy the injustice caused by its failings, as upheld by the stage three review panel.
3. Miss X complains the Council did not respond to specific parts of her complaint about its legal duties.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I considered Miss X’s complaint to the Council and information he provided. I also considered information from the Council.
9. I invited Miss X and the Council to comment on a draft of my decision and considered any comments received.

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What I found

Legislation and guidance

Statutory complaints procedures

The three-stage process

10. 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.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. 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 investigate the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
13. 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.
14. 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.
15. 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.

No reinvestigation if process complete and not flawed

16. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
17. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question. We may also consider whether a council properly considered the findings and recommendations of the independent investigation and review panel, and whether it has completed any recommendations without delay.

What happened

18. Miss X has two children. One child, Child Y, has several disabilities and has a package of care agreed by the Council. The package of care was previously arranged to be paid via direct payment. This would allow Miss X to source care of her choice for Child Y, to deliver the agreed care plan.

Stage one complaint

19. Miss X complained to the social worker and team manager at the Council in May 2023. In her complaint she said

• The Council had failed to meet Child Y’s assessed needs and Miss X’s needs as their carer.
• The package of support in place was not enough, as the allowance amount meant Miss X could not recruit carers.
• Miss X had to use her annual leave to cover school holidays as the direct payment is not enough.
• The impact of Miss X having to provide care instead of carers was impacting her wellbeing, and her relationship with her other child.
• The Council should have considered raising the direct payment amount sooner.
• Miss X had been raising concerns about this for an extended period of time and the Council had failed to address it.
• The Council was failing to meet its statutory duties to Child Y.

20. Miss X received a response from the team manager that said;

• The Council had recruited a short breaks manager as the service was facing challenges, and
• The Council was looking at alternative support options for Child Y.

Stage two complaint

21. Miss X asked the Council to consider her complaint at stage two. The Council said it had not logged the initial complaint as a formal complaint, as Miss X had sent it to the social worker. However, as the response was likely to be the same, it agreed to progress the complaint to stage two.
22. The Council appointed an independent person (IP) and independent officer (IO) to consider Miss X’s complaint at stage two. They agreed the scope of the investigation and complaint with Miss X.
23. The IO upheld or partially upheld that:

• Child Y’s needs had not been meant for an extended period due to recruitment issues.
• There had been a change in need and the direct payment should have been increased sooner.
• The increase may have helped Miss X recruit a carer sooner.
• The Council did not tell Miss X what the direct payment could be used for in a timely manner.
• The Council should have put alternative solutions in place sooner.
• Referrals to other services should have been done sooner.

24. The IO did not uphold:

• That the Council had failed to consider Miss X’s other child, as it had offered to refer them to support services.
• The Council should have explored alternatives to direct payments, this was because Miss X had specifically requested direct payments.
• That the Council had failed in its legal duty as it was aware each child had complex needs and was taking steps to address the issues of recruitment and short breaks services. Child Y’s needs had been assessed according to the Council’s legal duty and staff have worked to find resources.

25. The IO did not reach a finding on whether the Council should have signposted to other services sooner.
26. The IO recommended that:

• The Council apologise to Miss X
• Update Miss X’s carers assessment
• Reassure Miss X that it understood the importance of time with her other child.
• Explain to Miss X how it would work in partnership with her for the direct payment.
• Explain why Miss X was not told of spending alternatives sooner.
• Identify alternative measures if carers are not sourced.

27. The IP reviewed the IO’s findings and recommendations and agreed in full. The Council then adjudicated the IP's report and agreed with the findings and recommendations.

Stage three review panel

28. Miss X remained unhappy with the Council’s consideration of her complaint and asked the Council to consider her complaint at stage three.
29. The Council appointed a stage three review panel. It was not the role of the review panel to reinvestigate the complaint, but to decide whether the stage two had been carried out properly.
30. The Stage three review panel considered how the stage two investigation had been carried out.
31. Based on the evidence the panel saw, it changed

• two outcomes from partially upheld to upheld.
• One not upheld outcome to upheld.
• One not upheld outcome to inconclusive.

32. The panel also told the Council it had concerns about how the stage two investigation had been carried out. The panel felt that not enough information had been sought at stage two to make findings on some parts of the complaint. This was the reason for changing some of the findings and upholding further parts of Miss X’s complaint.
33. The stage three recommended

• A further apology to Miss X in recognition of the upheld parts of her complaint at stage two and stage three.
• To have a restorative meeting with Miss X.
• Ensure Miss X is provided with copies of the child and family assessment.

34. The Council’s final response to Miss X said it agreed with the stage three panel’s findings, and it would carry out the agreed actions from the stage two and stage three.
35. Miss X remained unhappy and complained to the Ombudsman.

Analysis

36. As set out in paragraphs 15 and 16, the Ombudsman will not reinvestigate complaints that have already been considered through the statutory complaints process, unless there is reason to believe the process was flawed.
37. The stage three review panel identified the flaws and failings of the stage two investigation and addressed this in its findings and with the Council directly. I have not seen any evidence of flaws in the process by the stage three review panel. The findings by the panel were clear, reasoned and evidenced. While there were flaws in how the Council considered Miss X’s complaint at stage two, this was adequately addressed and remedied by the stage three panel. The Council has already upheld the fault and see no good reason to reinvestigate the contents of the complaint.
38. I have therefore considered if the recommendations from the Council address the injustice caused to Miss X.
39. The remedies identified by both the stage two and the stage three seek to ensure that practical measures were taken to address the lack of services. The Council accepted that services needed to be in place and has provided evidence of what steps it has taken to achieve this.
40. The Council has provided evidence that it carried out the agreed actions from the stage two investigation and stage three panel.
41. However, there has been no acknowledgement from the Council about the distress caused to Miss X and her children during the period of fault. Given the Council upheld or partially upheld most of Miss X’s complaint, the Ombudsman would expect to see how the Council considered what injustice this had caused. The Ombudsman has clear guidance that it expects Council’s to use when considering injustice stemming from maladministration. I cannot see the Council has considered this guidance, or the injustice caused.
42. As part of my enquiries, I asked the Council why it had not provided a personal remedy to address this injustice. The Council told me it had told Miss X that she can use some of the amassed direct payment funds to pay for a holiday, and that it considered this addressed the injustice.
43. This was offered to Miss X after the conclusion of the complaint and was not considered or referenced as part of the Council’s adjudication of the complaint. This was a separate decision made after the complaint conclusion. As part of the complaint, the Council should have considered what injustice had been caused to Miss X as a parent and a carer. The Council’s decision to agree an additional use of funds two months after the complaint concluded is not a satisfactory remedy for the distress Miss X experienced during the period of fault.
44. I am therefore recommending the Council give a financial remedy to Miss X in recognition of the distress she experienced.

Further issues

45. Part of Miss X’s complaint to the Ombudsman was the Council had not responded to the part of her complaint about whether it had failed in its legal duties to her child.
46. The Council addressed this part of Miss X’s complaint in its stage two response which said Child Y’s needs had been assessed in line with its legal duties and it had been working to identify resources. It also addressed this in its final response to Miss X when it said that despite taking the steps to correct the shortage of services, it recognised Miss X experienced pressures due to the assessed needs not being met.
47. The Council has demonstrated that it did provide a response to this part of Miss X’s complaint. Additionally, if Miss X was not happy with how the Council decided the scope of its investigation, Miss X had the opportunity to address this during the complaints process.

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Agreed action

48. Within four weeks the Council has agreed to;

• Write to Miss X and apologise for the fault identified.
• Pay Miss X £750 in recognition of the distress caused. This remedy is higher than the Ombudsman would usually recommend, however In calculating this payment, I have considered the severity of the distress and the length of time involved.
• Remind complaint handling staff that where fault and injustice have been identified, the Council should be considering the Ombudsman’s guidance on remedies when deciding whether a remedy is appropriate.

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

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Final decision

50. I have completed my investigation. I find fault with the Council for failing to consider a suitable remedy for Miss X when upholding her complaint through the statutory complaints process.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman