Summary: Mr X complained about the outcome of the Council’s investigation under the statutory children’s complaints procedure into its involvement in his daughter, F’s care and its decision to try and obtain a care order. The Council properly investigated Mr X’s complaints but failed to provide an adequate remedy for the injustice caused by the faults it identified. The Council agreed to apologise to Mr X and make a payment to acknowledge the distress, frustration and uncertainty caused.

The complaint

1. Mr X complained about the outcome of the Council’s investigation under the statutory children’s complaints procedure into its involvement in his daughter, F’s care. Mr X was unhappy the Council took the family to court to try and obtain a care order for F which he said caused three years of distress and time and trouble.
2. Mr X is unhappy with the conclusions of the Council’s investigation which he says was also significantly delayed.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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)
6. 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

7. I spoke to Mr X about his complaint and considered information he provided.
8. I considered information from the Council including the stage two investigation report and the stage three panel report.
9. Mr X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Children’s statutory complaints procedure

10. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
11. Complaint investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint. Councils have up to 20 working days to respond.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant. The IP monitors the investigation to ensure its impartiality and thoroughness.

Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint. Councils have up to 13 weeks to complete stage two of the process from the date of request.

• Stage 3: A review panel considers the complaint. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)). The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
3. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Section 20 accommodation

13. Under Section 20 of the Children Act 1989, councils must provide accommodation to certain children in need in their area. Section 20 is used to accommodate children who are unable to live with their parents. Section 20 agreements do not have a time limit however they should not be used as a long-term solution.
14. Councils have a duty to accommodate under Section 20 if:
• no-one has Parental Responsibility for the young person; or
• the young person is lost or abandoned; or
• the person who has been caring for the young person is unable to continue to provide suitable care and accommodation.

Care orders

15. Where a child is made subject to a Care Order, the council is given Parental Responsibility and will share it with current Parental Responsibility holders, for example, the child’s parents. However, the local authority can exercise their Parental Responsibility above that of current Parental Responsibility holders insofar as necessary to safeguard the welfare of a child. 

What happened

Background

16. Mr and Mrs X adopted a child, F, in 2009. In 2015 Mr and Mrs X started raising concerns about F and needed support. The Council’s adoption team worked with Mr and Mrs X on a range of interventions.
17. In 2017 the Council say that the level of support it was providing to Mr and Mrs X was beyond what it usually provided via its adoption services. Its child protection team began working with Mr and Mrs X and began supporting them under Section 20.
18. F began attending a special school in 2018. Following this the Council continued providing support to Mr and Mrs X who eventually made it clear they could not cope with F and asked for F to be removed from their care. The special school allowed F to begin boarding there on a 52 week basis if required which was facilitated under Section 20, however F spent weekends and school holidays with Mr and Mrs X.
19. In 2019 the Council started legal proceedings and sought an interim care order for F to share parental responsibility for her with Mr and Mrs X. The court agreed a supervision order and a working agreement document was signed by the Council and Mr and Mrs X. The working agreement outlined a number of points which included that F would attend the special school as a 52 week pupil but spend time with Mr and Mrs X during the holidays.
20. Records show the Council’s case records in March 2020 recommended F stay at the special school for 38 weeks under Section 20 with support during the school holidays to promote family time at home.
21. In July 2020 the Council sought a full care order for F. Mr and Mrs X opposed the court order. The court decided that although the threshold for a care order was met it was not necessary, proportionate or in F’s best interests to do so, so it made no order. The court order stated all parties agreed F should remain at the special school on a 52 week placement.

Mr and Mrs X’s complaint

22. Mr and Mrs X initially complained to the Council in early 2021 and the Council agreed to proceed directly to a stage 2 investigation under the statutory children’s complaints procedure. Mr and Mrs X complained to us in October 2021 that the Council had failed to start the complaint investigation. We closed our complaint as the Council apologised to Mr and Mrs X for the delay and paid them £200 to acknowledge any distress caused. It agreed to start a stage 2 investigation without delay.

Stage 2 investigation

23. The Council considered Mr and Mrs X’s complaint at stage 2 in January 2022 and the investigating officer (IO) issued their report in May 2022. The IO investigated eleven points of complaint. These included:
• dissatisfaction with the Council for starting court proceedings;
• failing to properly explain the implications of F being under a Section 20 agreement at the special school;
• incorrect content of reports presented to the court;
• inaccurate case records maintained by social workers;
• breach of GDPR;
• lack of assistance and support over various periods; and
• failing to follow the working agreement around F’s 52 week access to the special school. Mr and Mrs X said this meant F was unable to return to the school during school holidays when she wanted to do so, despite the working agreement and court order stating she had access for 52 weeks a year. Mr and Mrs X said the school believed the placement was for 38 weeks a year.
24. The IO upheld a complaint about delays in the complaints process and partially upheld Mr and Mrs X’s complaint around a data breach. It did not uphold any of the other complaints.
25. This included Mr and Mrs X’s complaint that the social worker maintained inaccurate case records. The IO nonetheless recommended the Council ensure processes are in place for considering families comments and corrections around inaccuracies in documents to ensure they are not repeated in future documents.
26. With regards to the 52 week placement for F at the special school, the IO found the Council had agreed with the school that F would attend on a 38 week placement and spend holidays with Mr and Mrs X, with the option of extending it to 52 weeks if needed. Despite not upholding this element of the complaint the IO said the commissioning arrangements lacked clarity around whether F’s placement was for 52 or 38 weeks. They recommended the Council be consistent and clear in future to avoid unnecessary uncertainty for families around commissioning arrangements for support and care for children.
27. The adjudicating officer agreed with the findings of the IO. The IP also raised no concerns about the investigation. In terms of the IO’s recommendations, the officer acknowledged communication was not clear around the length of F’s placement at the special school. It said it has updated its forms, so they clearly show a length of placement being commissioned to avoid confusion. The officer also said the Council had processes in place to consider comments and inaccuracies about documents and reports but conceded the social worker should have explained these more clearly.

Stage 3 independent panel

28. Mr and Mrs X were unhappy with the conclusion of the stage 2 investigation and asked the Council to escalate the matter to stage 3 in June 2022. By January 2023 the Council had still not held a stage 3 panel and so Mr X complained to us. We found the Council at fault and asked it to hold a stage 3 panel without further delay and pay Mr and Mrs X £200 to acknowledge the frustration caused by the delay.
29. The Council held the stage 3 panel in March 2023. The stage 3 panel broadly agreed with the findings of the stage 2 investigation. However, the panel found some of the social worker’s records did contain inaccuracies, which were repeated even after Mr and Mrs X made the social worker aware. It therefore changed the finding on that complaint to partially upheld.
30. With regards to F’s placement, the panel accepted on balance, that F’s school wrongly believed F’s placement was only for 38 weeks, and told Mr and Mrs X as such. It partially upheld this element of the complaint. The panel supported the recommendations made at stage 2.
31. The stage 3 adjudication officer agreed with the panel findings and apologised for the delays in completing the statutory complaints process.
32. Mr and Mrs X remained unhappy and complained to us.

Mr and Mrs X’s complaint to us

33. Much of Mr and Mrs X’s remaining dissatisfaction lies with the court proceedings and the Council’s decision to seek a care order. They also remain unhappy about inaccurate records and the content of reports provided to the court. Mr and Mrs X believe the Council’s case to the court was built on lies.
34. Mr and Mrs X also remained unhappy about the working agreement and whether F’s placement at the special school was 52 or 38 weeks. Mr X provided examples and email evidence which shows F was unable to return to the special school while at home during school holidays because the school refused to accept her. This was on the basis it believed the placement was for 38 weeks only.

My findings

35. It is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
• was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
• did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
• has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
36. The stage 2 investigation and stage 3 panel review were properly conducted, albeit for the delays which have already been remedied by us in previous investigations. The IO reviewed and considered relevant information, spoke to Mr and Mrs X and carried out interviews with social workers. The IP raised no concerns and agreed with the IO’s findings and conclusions. The stage 3 panel independently considered Mr X’s concerns. There was no fault in the how the Council considered the complaints so I accept the findings.
37. The complaints process identified the Council was at fault in how it communicated the commissioning arrangements for F’s placement at the special school and for inaccuracies in documents. The IO made recommendations which the Council properly considered and acted upon where needed. It was not at fault in how it responded to the recommendations.
38. However, the Council did not offer a personal remedy to Mr and Mrs X to address the injustice stemming from the faults. The inaccurate records caused Mr and Mrs X avoidable frustration. The Council’s poor communication on the arrangements for F’s school placement meant there were instances during holiday periods where F wanted to return to the school but could not. This caused Mr and Mrs X distress and uncertainty. The Council was at fault for failing to make a suitable remedy for that injustice.
39. I acknowledge Mr and Mrs X disagree with most of the findings, specifically around the Council’s motives for beginning the court case and the information and reports presented to the courts. However, as there is no fault with how the Council carried out the investigation, I cannot question the Council’s conclusions. We also cannot investigate complaints about the start of court action or what happened in court. So, further investigation would not achieve anything further.

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Agreed action

40. Within one month of the final decision the Council agreed to write to Mr and Mrs X to apologise and pay them £300. This is to remedy to the distress and uncertainty caused by its failure to communicate how it would consider comments about inaccuracies within documents and reports and the confusion about F’s commissioning arrangements at the special school.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I completed this investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman