Summary: Mrs X complained the Council failed to make sure Mr Y was cared for properly, while in foster care. The Council was at fault. It failed to properly handle Mrs X’s complaint via the children’s statutory complaint procedure. Mrs X, and Mr Y, have not had the opportunity for a proper investigation into the complaint about Mr Y’s care. The Council has agreed to apologise to Mrs X and process the complaint via the children’s statutory complaint procedure, without delay.

The complaint

1. Mrs X complained about the care Mr Y received while living in a foster care placement. She said the Council did not safeguard Mr Y.
2. Mrs X complained Mr Y was out of education for many years and this has had an impact on his development.
3. Mrs X said the Council did not act in Mr Y’s best interest, and as a result he is now isolated and extremely vulnerable.

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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 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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)

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What I have and have not investigated

7. The children’s statutory 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.
8. Mr Y is a vulnerable young man. He should be afforded the opportunity to have the complaints being made on his behalf properly considered, through a procedure designed to ensure children and young people’s voices are heard.
9. Therefore, I have not investigated the substantive complaint points. I have investigated how the Council handled Mrs X’s complaint.

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How I considered this complaint

10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. Mrs 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

Law and guidance

12. 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.
13. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
14. 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.
15. 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.
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.
18. The guidance lists who may complain using the statutory procedure. The council does not need consent from the child or young person to investigate a complaint from a person on this list. However, it may need consent from the child or young person to disclose information about them to the person making a complaint.
19. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
20. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

21. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

What happened here

22. The following list is a summary of key events relevant to this investigation. It is purposely brief, to protect Mr Y’s anonymity. It is not a list of everything that happened.
23. Mr Y is a young man. He has autistic spectrum disorder, attention deficit hyperactivity disorder and learning disabilities. Mr Y spent a lot of his childhood in foster care.
24. In 2024 Mr Y lived for a while with Mrs X and her family.
25. In March 2024 Mrs X made a complaint to the Council, on behalf of Mr Y. She complained about the Councils involvement in Mr Y’s care.
26. In April 2024 the Council responded to Mrs X. It responded to the complaint about the Councils interactions with her and her family. It responded to some of the complaint about Mr Y’s care. It also said it could not respond to some of the complaint because it had to go through a process to decide Mr Y’s capacity to engage in the complaints process. It also said it had to gain Mr Y’s consent for Mrs X to make the complaint.
27. Mrs X tried to escalate the complaint, without success. She maintained contact with the Council about Mr Y’s care. She became increasingly concerned.
28. In February 2025 Mrs X complained to the Ombudsman.
29. In May 2025 the Council carried out a mental capacity assessment. The Council decided Mr Y consented to Mrs X making a complaint, on his behalf.

My findings

30. Previously the Council declined to take the complaint points from Mrs X, about Mr Y’s care. The Council correctly said Mr Y’s capacity needed to be determined, and if applicable, consent obtained for the complaint to be made.
31. However, it took the Council over one year to carry out a mental capacity assessment for Mr Y. I find fault with the Council for failing to carry out the assessment in a timely manner.
32. The Council was also at fault for failing to handle Mrs X’s complaint properly. Once consent had been obtained, Mrs X’s complaint should have been considered via the children’s statutory complaint procedure. Had this happened, Mrs X may not have needed to complain to the Ombudsman.
33. Fault by the Council caused undue time and trouble for Mrs X.

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Action

34. To remedy the injustice caused to Mr Y, and Mrs X, within four weeks of a final decision, the Council will:
• Apologise to Mrs X in line with our guidance on Making an Effective Apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings, and
• Start stage two of the children’s statutory complaints procedure. Timescales set out in the statutory guidance ‘Getting the Best from Complaints’ should be adhered to at stage two and should Mrs X wish to further escalate the complaint, at stage three. If the investigation takes longer than 25 days at stage two, Mrs X should be informed of the reasons why and it should take no longer than 65 days to complete.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman