Summary: Mr X complained about the way the Council dealt with the care of his daughter, Ms Y. The Council was at fault for completing a flawed stage two investigation, delaying in completing the complaint procedure, poor communication and failing to explain its reasons for rejecting the panel’s findings. This caused Mr X distress, frustration and uncertainty. The Council has agreed to apologise, make a payment to Mr X and fully explain its decisions.

The complaint

1. Mr X complains on behalf of his daughter, Ms Y, about the way the Council dealt with her care, he says the Council:
1. indirectly discriminated Ms Y by failing to understand her neurodiversity;
2. failed to properly investigate his complaints;
3. failed to wait for the outcome of a subject access review before completing the second stage two investigation; and
4. denied its failings despite the stage three investigation upholding many complaint elements.
2. Mr X says this situation has caused Ms Y trauma and inappropriate treatment which caused a deterioration of her mental health and development. He also says the excessive delays in dealing with these issues and the Council’s continuing failures has caused him and the rest of the family significant distress.

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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. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
6. 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

7. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

Statutory complaints procedures - the three-stage 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 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.
10. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
11. 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.
12. 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.
13. 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.
14. 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 - The Guidance

15. 3.15 says “those persons involved with the investigation at Stage 2 (e.g. the Investigating Officer and Independent Person) should be invited to attend and contribute as relevant to their roles. Should any of these persons’ unavailability cause an inordinate delay in holding the panel, the chair should take a view on proceeding without them”.
16. 3.10.1 says panels are designed to “obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction” and then “to reach findings on each of the complaints being reviewed”.
17. 3.18.1 notes a council must send its response to the Panel’s recommendations to the complainant (and other participants as necessary) within 15 days of receiving the Panel’s report (regulation 20(3)). The response should be developed by the relevant Director / Director of Children’s Services setting out how the council will respond to the recommendations and what action will be taken. If the Director deviates from the Panel’s recommendations he should demonstrate his reasoning in the response.

No reinvestigation if process complete and not flawed

18. 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.
19. 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.

Subject access request (SAR)

20. A subject access request (SAR) is a legal right for an individual to ask an organisation for a copy of their personal information. Individuals can make a SAR to see what data is being stored and verify its accuracy. 

What happened?

The Council’s investigation into Mr X’s complaint

21. In November 2017, Mr X made a complaint to the Council about the way it had dealt with several matters relating to his daughter, Ms Y, who was a child at the time. The Council responded to this complaint in May 2019.
22. Two days later, Mr X contacted the Council unhappy with the stage one response. He asked the Council to escalate it to stage two, which the Council agreed to do.
23. The IO completed the stage two report in July 2020, but the Council did not send this to Mr X until February 2021.
24. In March, the Council contacted Mr X to ask if he had reviewed the IO report. Mr X explained Ms Y would like some more time to consider the report. He then contacted the Council again in February 2022 asking for a phone call to discuss the complaint response which was arranged for shortly after.
25. Mr X was unhappy with the stage two investigation. He said the investigation was not independent and was inadequate. The Council agreed with some of Mr X’s points and offered a reinvestigation at stage two. The Council appointed a new IO and IP in December 2022.
26. The IO and Mr X agreed the summary of complaint in April 2023. This included, that the Council;

• indirectly discriminated Ms Y by failing to understand her neurodiversity;
• mistreated Ms Y when she was taken into police protection;
• failed to act in Ms Y’s best interests, instead treating her with an assumption of guilt;
• placed Ms Y in secure accommodation where she received poor care and provision;
• kept inaccurate records;
• shared personal information related to Ms Y with people outside of the Council and then failed to investigate this; and
• poorly managed his complaints.

27. In May 2023, Mr X sent a SAR request to the Council about information it held on Ms Y. The Council agreed it would pause the stage two investigation while it processed the request. In November 2023, Mr X complained to the Council that it failed to wait for the outcome of the SAR before resuming the stage two investigation.
28. The Council said that it had decided to proceed with the complaint after speaking with Ms Y. It admitted it should have told Mr X this and apologised for failing to do so.
29. At the beginning of February 2024, the Council sent the IO and IP reports and the stage two adjudication letter to Mr X. The Council noted it was unclear why there had been a significant delay in investigating the complaint and apologised.
30. Shortly after this, Mr X disagreed with the stage two investigation and asked the Council to escalate to stage three. The Council agreed to this. The stage three panel review meeting was held in September 2024.
31. Notes from the panel meeting show the IO that completed the second stage two investigation, died several months before. Because of this, the panel relied on the IP for their knowledge and understanding of the IO findings and conclusions.
32. The Council sent the stage three review panel letter to Mr X in October 2024. This noted the Council upheld the following:

• It had poorly communicated with Mr X which may have contributed to some of Ms Y’s isolation;
• Staff training may not meet the needs of everyone that is neurodivergent;
• It failed to investigate the suspected data leak properly; and
• It failed to properly manage Mr X’s complaints.

33. The Council also explained it disagreed with some of the panel findings, including:

• The decision to uphold Mr X’s complaint that the Council failed to take account that Ms Y is autistic. The Council explained it was not upholding this because there was evidence the Council considered adjusting communication with Ms Y to take account of her needs.
• The panel made no finding that the Council treated Ms Y as if she were guilty of serious offences, because it said the IO did not address this directly in the stage two investigation. The Council changed this to not upheld but did not explain the reasons for this decision.
• The panel upheld Mr X’s complaint that the Council presented inaccurate information to court, but the Council decided not to uphold this. It explained this was because it agreed with the stage two view and evidence. Specifically, that matters in court are influenced by other agencies and there is a separate process for challenging inaccurate information presented at court.
• The Council disagreed with the panel’s decision to uphold the complaint that Ms Y was in secure accommodation for too long. It explained this was because this was a matter for the courts to decide and not the Council.
• The Council also disagreed with the panel making no finding about Ms Y being unable to attend a family funeral. The Council explained this was because it agreed with the stage two AO that risk assessments in place were appropriate.
• The Council also referenced the panel having insufficient time to discuss part of the complaint about data. Despite this not being discussed at the panel meeting, it partially upheld the complaint, but did not explain reasons for this, apart from noting that this was the view of the stage two AO.

The Council’s recommendations

34. Following stage two and three of the complaint procedure. The Council made several recommendations which included service improvements and personal remedies to Mr X and Ms Y. This included:

• an apology;
• a review of ways staff support and engage with disabled children, including autistic children;
• offering a meeting to Mr X to discuss inaccuracies in records and amendments needed to these;
• offering mediation between Mr X and the Council;
• meeting with Mr X to discuss his experience of the complaint process;
• a review of training for staff working with young people who are neurodivergent; and
• a review of training for staff around data protection.

Findings

The procedure

35. I have considered the documents from Mr X’s complaint, and I note that:
• The second independent investigation report refers to relevant procedure and case records. These case records support the investigator’s findings.
• The Council considered Mr X’s desired outcomes and explained its view about these.
36. But, the Council acknowledged the first stage two investigation was flawed because the investigation was inadequate. This was fault which caused Mr X frustration and uncertainty about the complaint process. I welcome the Council apologising for this and offering a new stage two investigation which was then completed.
37. I have considered Mr X’s view that other parts of the procedure were flawed. He said:
1. The Council went back on an agreement to put the second stage two investigation on hold while it completed the SAR process. – The Council admitted it did this and didn’t tell Mr X about its decision to do so. But, there is no duty on a Council to pause investigations while it completes other processes. I find fault in the Council’s poor communication with Mr X about this matter, but no fault in the decision it made to continue the investigation. The Council has already apologised for the poor communication which is a sufficient remedy.
2. The Council failed to allow Mr X to comment on the second stage two investigation report. – There is no duty on a Council to do so and there was no fault in the Council’s actions here. I also note that this complaint was then subject to stage three panel. Any concerns that Mr X had about the report could have been raised at this stage, as he did.
3. The stage three panel meeting went ahead, despite the death of the second stage two IO. – The Guidance notes that if anyone the stage two is unavailable, the chair should take a view on proceeding without them. In this case, the chair considered this point, liaised with the IP, and decided that they had sufficient oversight of the complaint to be able to advise the stage three panel. This is a decision the Council was entitled to make, and one made without fault.
4. The procedure failed to consider new evidence Mr X presented to the stage three panel related to his complaint that the Council failed to act in Ms Y’s best interests while at a secure unit, specifically related to the Council influencing interventions for Ms Y’s mental health. – The panel chair acknowledged the evidence but decided it could not reinvestigate this matter, because this evidence had not been presented at stage two. The panel recommended a no finding outcome.

I have considered the panel’s response to this new information. Although the panel acknowledged the evidence and recorded that it had done so, it refused to review it because it had not been presented earlier at stage two. The Council’s view is that determining the meaning of this evidence would have needed further investigation with third-parties and for professional judgements to have been made. For this reason, it noted that making any findings based on this new evidence would have amounted to a reinvestigation, which is not within the remit of a stage three panel. The Council made this decision in line with guidance and this was a decision it made without fault.

I will not investigate this matter further because decisions about Ms Y’s mental health interventions should be made by health professionals, not the Council. Even if the Council had influenced the unit, health services would have had the final say, so further investigation would unlikely change the outcome.

5. I understand Mr X is unhappy that the IO did not ask for this information at stage two, but there is no duty on an IO to consider records from other agencies or organisations. I note the IO did consider documents from a secure accommodation review. I am satisfied the decisions within the report were based on sound evidence and so there is no fault in the IO failing to ask for further evidence from the unit. The Council also told me the IO told Ms Y’s mother in April 2023 that she could provide supporting evidence at a later date.
6. In relation to Mr X’s complaint about a potential data breach. The panel recorded there was insufficient time to discuss this at the stage three meeting, but that panel felt this should be fully upheld because it had read all the notes available related to this point. I will not investigate this point further because the Council already upheld that it did not follow its policies on reporting data leaks and keeping information secure so further investigation would unlikely lead to a different outcome for Mr X.

The Council’s final response

38. As I have not reinvestigated the substantive complaints, I have considered whether there was fault in the Council’s consideration and explanations for rejecting some of the findings of the statutory procedure.
39. The review panel made no finding about Mr X’s complaint that the Council treated Ms Y as if she were guilty of serious offences. It said this was because the IO did not address this directly in the stage two investigation. At stage three the Council changed this finding to not upheld but did not explain their reasoning for this change of decision. The Guidance says a council can deviate from the panel’s recommendations, but, it should demonstrate reasoning in the response. The Council did not explain its reasoning here, and this is fault. I have already explained that I will not reinvestigate this matter, but I will ask the Council to write to Mr X to explain the reasons for its change in decision.
40. I note the Council disagreed with several other decisions that the panel made at the stage three review meeting. Having considered the evidence, I am satisfied it clearly explained its reasons for these decisions and this was a decision the Council was entitled to make, in line with the guidance. Therefore, I find no fault.

Timeframes

41. The Council already accepted that it failed to complete the statutory procedure within the required timeframes. It took the Council 18 months to respond to Mr X’s stage one complaint.
42. I note it took the Council three years and four months to complete the first stage two investigation. Although I acknowledge Mr X contributed to around one year of this delay, we expect a Council to complete stage two within 65 working days, which it failed to do here.
43. It took the Council a further 14 months to complete the second stage two investigation. Although I note that Mr X did ask the Council to put this on hold while the Council processed the SAR request, this is still significantly longer than the 65 working day timeframe.
44. It took the Council eight months to complete stage three of the investigation. However, I note that Mr X’s unavailability and the death of the IO contributed towards this delay.
45. All together, it took the Council from November 2017 to October 2024, to complete the statutory procedure, almost seven years. We expect the procedure to be completed within 135 working days. The Council was unable to explain a reason for these significant delays within the adjudication letter, but did say significant improvements have been made to its complaint handling.
46. This significant delay was fault which caused Mr X frustration and uncertainty. I will recommend the Council make a payment to remedy this injustice. I have taken into consideration that Mr X contributed to some of this delay in calculating the remedy.

Remedies

47. I have also considered whether the Council’s remedies properly recognise the injustice it has caused and whether these were carried out without delay.
48. I welcome that the Council has apologised to Mr X and met with him to discuss the complaint process.
49. The Council also met with Mr X to discuss inaccuracies in records and amendments needed to these, but I understand that this process is still ongoing and Mr X remains unhappy with the progress so far.
50. Although the meeting and offer to rectify some of these records remedied the injustice caused, if Mr X feels that this offer does not fully resolve the issue of inaccurate records, he may have a right of rectification under the Data Protection Act. If he is unhappy with how the Council deals with any requests, he can raise this with the Information Commissioner.
51. The Council has also offered mediation, which has been postponed until the completion of this investigation, at Mr X’s request.
52. In response to enquiries, the Council failed to provide evidence that it had reviewed whether staff need further neurodivergent training and staff awareness of GDPR. I will ask the Council to provide evidence of these completed remedies.
53. Apart from this, I am satisfied the Council has completed or made steps to complete the recommended remedies.

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Action

54. Within four weeks of our final decision, the Council will:

• apologise to Mr X for the frustration, uncertainty and distress caused by its faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
• make a payment of £700 to Mr X to remedy the injustice caused by the Council’s delay in completing the procedure;
• provide evidence of the completion of the review of staff neurodivergent training and staff awareness on GDPR;
• write to Mr X to clarify the reasons for the Council deciding to deviate from the panel’s findings in its final response; remind staff of the importance of keeping to complaint handling timeframes.

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

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Investigator's decision on behalf of the Ombudsman