Summary: Ms X complained the Council failed to provide an appropriate remedy for the injustice caused to her and her son, Y, after it upheld her complaint that it had not properly assessed Y’s needs and had delayed responding to her complaint. The remedy the Council proposed for the upheld complaint was appropriate.

The complaint

1. Ms X complained the Council failed to provide an appropriate remedy for the injustice caused to her and her son, Y, after it upheld her complaint that it had not properly assessed Y’s needs and had delayed responding to her complaint. Ms X wanted the Council to provide an appropriate remedy for the lack of support she and Y received because of the Council’s faults.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I read the documents Ms X provided and discussed the complaint with her on the phone.
6. I considered the documents the Council sent in response to my enquiries.
7. 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

Relevant legislation and guidance

8. 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.
9. 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 investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
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 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.
12. 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.
13. However, we may 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.

Section 17 duties

14. Under Section 17 of the Children Act 1989, councils with social services functions have a duty to safeguard and promote the welfare of children in need in their area. A child with a disability is considered to be a child in need. Under the Act, councils can provide financial assistance to a child or family. Such financial assistance may be unconditional or subject to repayment in full or part. Before providing financial assistance, councils should consider the child or parents’ financial circumstances. The courts have said the functions of a council under Section 17 of the Act can extend to providing major adaptations to a child’s home.

What happened

Background information

15. In previous investigations by the Ombudsman we have investigated how the Council considered Ms X’s complaint, up to the point it held the stage three panel meeting. For that reason, I have not commented on the stage two investigation, other than where it is relevant to the stage three panel considerations.
16. Y is a child who lives at home with his mother Ms X and his siblings. In 2021 Ms X believed Y had a disability. She asked the Council to complete an assessment of Y’s needs by its children with disabilities team. The Council said Y did not meet the criteria for an assessment by that team, but another team could complete an assessment under section 17 of the Children Act.
17. In September 2021 Ms X complained to the Council about its decision.
18. The Council responded to Ms X in February 2022; it did not uphold her complaint.
19. Ms X was dissatisfied with the Council’s response and asked it to consider her complaint further. The Council appointed an Independent Reviewer (IR) to review Ms X’s complaint. The IR agreed four points of complaint with Ms X and confirmed the outcome she wanted was for the Council to pay for Y to attend activities and financial compensation for the distress she was caused.
20. Ms X’s complaint was that the Council:
• failed to properly assess Y;
• delayed providing a response to her request for an assessment;
• delayed responding to her complaint; and
• wrongly dismissed an occupational therapist’s (OT) recommendation for respite.
21. The IR completed the review and sent a report to the Council. It said the Council delayed responding to Ms X’s complaint. It did not uphold the three other complaints.
22. The Council sent Ms X an adjudication letter and said it agreed with the reviewer’s report, and apologised for the delay in considering her complaint.
23. Ms X asked the Council to consider her complaint further. The Council arranged a stage three panel in line with the statutory guidance. By the time the stage three panel meeting was held Ms X and Y had moved out of the Council’s area.
24. The record of the stage three panel meeting shows the Independent Reviewer did not complete the review of Ms X’s complaint in line with the statutory children’s complaint procedure due to lack of clarity from the Council. They said if they had considered the complaint through the statutory process they may have made a different finding about whether the Council properly assessed Y.
25. The panel considered Ms X’s representations in January 2024 and discussed the complaints further with her and the IR. It found that Ms X’s complaint the Council did not properly assess Y should be upheld. It said it would have recommended the Council complete a section 17 assessment for Y if they still lived in the Council’s area. The panel recommended the Council apologise and pay Ms X £100 to recognise the unnecessary frustration caused by it failing to complete an assessment of Y’s needs and the time and trouble to pursue her complaint.
26. The panel agreed the two other complaints were not upheld and made some further recommendations for improvements in the Council’s complaint handling. It recommended the Council should complete an internal review of how it handled children’s complaints and consider further training for officers, IPs and IOs based on the outcome of that review.
27. The Council considered the stage three panel’s report and wrote to Ms X and apologised for the upheld complaints. It offered Ms X the £100 recommended by the panel and an additional £500 symbolic payment for the time and trouble and distress caused to her by its handling of her complaint.
28. It said that since Ms X’s complaint it had clarified its pathways to support and protection for children to prevent the same fault happening again. It explained it had provided extra training for its staff in late 2022 and early 2023, from an external professional on the ‘Getting the Best from Complaints’ statutory guidance.
29. The Council said it was not recommending an internal review because at that time the Ombudsman was completing an investigation into how it handled children’s statutory complaints. It said after that investigation it would consider if it should complete the additional training the panel recommended.
30. In response to my enquiries the Council provided evidence it had completed the recommendations as set out in its stage three letter to Ms X. The Council said the Ombudsman’s investigation did not find a systemic problem with its children’s statutory complaint handling and so it did not provide additional training for IOs or IPs.
31. As set out in paragraph 15, my findings below relate only to the stage three panel considerations.

My findings

32. The Council considered Ms X’s complaint at stage three of the children’s statutory complaint procedure. The stage three panel’s purpose is to consider the adequacy of the stage two investigation. Where the panel found the investigation had not been robust, it amended the findings, upheld one of Ms X’s complaints and made recommendations to the Council to improve its service and remedy Ms X’s injustice.
33. Our guidance says we recommend redress which is proportionate, appropriate and reasonable based on the facts of the case. We encourage bodies in our jurisdiction to offer remedies. We will take account of any offer made and will not interfere if we consider a proposal satisfactorily addresses the injustice caused.
34. The stage three panel found that the Council should have completed an assessment of Y’s needs in 2021 and had delayed in considering Ms X’s complaint. Both of those matters are fault. The Council said if Y still lived in its area it would have completed an assessment of his needs, which would have been an appropriate remedy. As Y no longer lives in its area, the Council cannot complete the assessment.
35. It is not possible to say, even on a balance of probabilities, what an assessment would have decided had it been completed in 2021. This is because there has not been an assessment, and even if an assessment was completed now, I could not say that Y’s needs were the same three years ago. The fault in not completing the assessment at the time leaves Ms X with uncertainty.
36. The Council has offered Ms X a symbolic financial payment to remedy the uncertainty she was caused. It has also offered symbolic financial payments for the injustice caused to Ms X by the delay in the complaint process. The remedies the Council has offered are in line with our guidance on remedies and are appropriate.

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Final decision

37. I have completed my investigation. I found fault causing injustice and the Council has already remedied that injustice.

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Investigator's decision on behalf of the Ombudsman