Summary: Mrs X complained about the Council’s failure to complete a robust statutory complaint investigation, including the failure to secure advocacy, complete a carer's assessment or about the Child In Need Plan. I have ended this investigation because Mrs X started Judicial Review proceedings against the Council about the same issues. We investigated the Council’s complaint handling delays at Stage one and Stage two of the statutory complaints process under a previous investigation. The remaining delays do not present a significant enough personal injustice to Mrs X to justify investigation when we cannot consider the substantive matter.

The complaint

1. Mrs X complained the Council failed to:
• Adhere to the statutory timescales when responding to her children’s statutory complaint.
• Failed to conduct a robust statutory complaint investigation or carry out the recommendations made during the complaints process.
• Failed to complete a carer's assessment.
• Failed to provide her with advocacy
• Failed to complete suitable action surrounding her child’s Child In Need Plan.
2. Mrs X says the Council’s actions caused her time and trouble, frustration and prevented her and her child from accessing suitable services.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
7. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

8. I considered evidence provided by Mrs X and the Council as well as relevant law and our guidance on jurisdiction.
9. Mrs X and the Council had an opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant Law and Guidance

Statutory Complaints

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. 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.
13. 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.

Carer’s Assessments

14. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carers’ assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.

Advocacy

15. Councils must arrange advocacy for children and young people who wish to make a complaint about social care services being delivered to them. The government has also issued guidance which says children and young people should be supported to communicate their wishes and feelings through an advocate.
16. The Care Act requires that each local authority must arrange, where appropriate, for an independent advocate to represent and support an adult who is the subject of a safeguarding enquiry or Safeguarding Adult Review (SAR) where the adult has ‘substantial difficulty’ in being involved in the process and where there is no other suitable person to represent and support them.

Child In Need

17. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. Under the Children Act 1989, councils are required to provide services for children in need for the purposes of safeguarding and promoting their welfare.
18. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

Consideration

19. Mrs X brought a complaint to us about the Council failing to complete a suitable statutory investigation or carry out the recommendations from this investigation. Within the statutory complaint the Council investigated its failure to complete a carer's assessment and the Child In Need Plan. Mrs X also complained the Council failed to provide her with advocacy despite the Council including this as a recommendation through the statutory complaints process.
20. During our investigation, Mrs X submitted a Judicial Review claim against the Council to the courts. Mrs X’s statement of grounds for Judicial Review included the failure to provide advocacy, failure to carry out a carer's assessment and failure to safeguard the wellbeing of her child. The courts confirmed with the Council it put this matter forwards for Judicial Review.
21. The law says we cannot consider matters that have been raised in court. The issues of advocacy and the carer’s assessment Mrs X raised in her complaint to us are central elements to the Judicial Review Proceedings and we have no discretion to decide to investigate this complaint.
22. The Child In Need Plan matters Mrs X raised with us are not raised as central points in the Judicial Review. However, they are mentioned within the supporting evidence to the courts and this matter overlaps with the Judicial Review ground of safeguarding the wellbeing of Mrs X child. Such matters are too intertwined with the Judicial Review proceedings for us to investigate.
23. Mrs X brought a complaint to us about the failure of the Council to adhere to the statutory timescales in handling her statutory children’s complaint. We previously considered Mrs X’s complaint about delays in the Stage one and Stage two parts of the children’s statutory complaints process. We will not investigate the same matter twice. The Council delayed by 10 working days at Stage three of the children’s statutory complaint process. This delay did not present a significant personal injustice to Mrs X. It is also not a good use of public resources for us to consider peripheral matters such as complaint-handling in isolation when we cannot consider the substantive matters a person complained about.

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Decision

24. We cannot investigate Mrs X’s complaint because it relates to matters she has since submitted to the courts for Judicial Review or is too intertwined with the Judicial Review matters. The law prevents us considering matters that are being considered as part of legal proceedings.

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Investigator's decision on behalf of the Ombudsman