Summary: Mr X complained the Council has not taken action to ensure that he and his wife have the respite care for their child that the family is entitled to. The Council was at fault because of its failure to commence a stage two statutory investigation under the Children Act 1989. This caused Mr X distress, worry, uncertainty, and frustration. The Council should take action to remedy the injustice caused to Mr X by the fault and to avoid it happening again in future.

The complaint

1. Mr X and his wife have been assessed as being entitled to 28 nights per year of respite care for their teenage child who has special needs. Mr X complained that they have never had the full 28 nights, care provisions have fallen through over time, and the Council has not found a suitable new placement. He said the Council had put unnecessary barriers in place regarding the kind of provider that would be acceptable. Mr X said that the family is in crisis and needs the agreed respite as a matter of urgency. He also wants the family’s Care Act assessments to be updated.

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The Ombudsman’s role and powers

2. 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)
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 the final decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I have and have not investigated

5. I have only looked at the way the Council dealt with Mr X’s complaints. I have not investigated the substantive matter concerning the actions of the Council’s children’s services.

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How I considered this complaint

6. I considered the information provided by Mr X and the Council and spoke to Mr X on the telephone.
7. The Council and Mr X had the opportunity to comment on a draft version of this decision statement. I took their comments into account before reaching a final decision.

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What I found

The statutory complaints procedure

8. The law (the Children Act 1989) 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. 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.
12. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days (13 weeks) 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.
14. The statutory guidance says that, if a complaint has entered stage one, the council is obliged to ensure the complaint proceeds to stages two and three if the complainant requests this.

The Council’s Children’s Services Social Care Complaints Procedure

15. The Council has its own policy which reflects the duties set out in the statutory three-stage process.

What happened

16. Mr X complained to the Council in January 2024. The Council acknowledged his complaint by email, stating that it would be investigated in line with the Children’s complaints procedure by the relevant Manager in Children’s Services, who would respond within 15 working days.
17. Later in January, a Council officer contacted Mr X by email to let him know that the cost of funding his child’s respite care package had been agreed by the funding panel.
18. In late April, Mr X chased the Council for a response to his complaint. He asked for it be escalated to stage two. The Council said that the email confirming funding had been the response to his complaint.
19. Mr X asked again for his complaint to be escalated to stage two. The Council responded that Mr X’s previous complaint had been “completed and fulfilled” when the care provider had told him, in mid-April, that it could not provide overnight respite care. It said that he would have to raise a new complaint if he was dissatisfied.
20. Mr X submitted a new complaint in early June, pointing out that he was complaining about the same matters, so he considered he should be responded to at stage two of the complaints procedure.
21. The Council replied that Mr X’s complaint would be “investigated as a stage 2 review in line with our Children’s complaints procedure by the relevant Manager.”
22. The Council sent a holding email to Mr X in mid-July, and a full complaint response in early August. That response was authored by the Head of Service, Whole Life Disability Services, and concluded by directing Mr X to complain to the Ombudsman if he remained dissatisfied.
23. Mr X approached the Ombudsman in August. We wrote to the Council in October, suggesting that it had replied to Mr X’s complaints within the corporate complaints procedure rather than the children’s statutory complaints procedure, and inviting it to complete a children’s stage two investigation within 65 working days.
24. The Council replied in November that its early August letter had been the outcome of its children’s stage two investigation.

Analysis

25. There was significant fault in the way the Council handled Mr X’s complaint.
26. The Council told Mr X that the confirmation of funding approval sent to him in January was the stage one complaint response. The funding confirmation email did not include any reference to Mr X’s complaint, nor did it engage with the matters he had raised. It was not sent by the relevant manager in Children’s Services, and it did not advise Mr X how to escalate his complaint to stage two. It could not reasonably be considered to constitute a complaint response under either the children’s statutory complaints procedure or the corporate complaints procedure. All of this was fault, which caused Mr X an injustice in that he suffered uncertainty caused by the delay in waiting for a proper complaint response.
27. The Council then told Mr X, in April, that his complaint had been responded to by the care provider informing him that it could not provide the required respite care. Again, this could not reasonably be considered to constitute a complaint response – it was a response to a service request. This was also fault on the Council’s part.
28. It follows that the Council’s insistence that Mr X should submit a new complaint was also fault – he had not yet received a substantive response to his initial complaint. Even if the Council believed it had provided a response, the next correct action would have been for the Council to escalate the complaint to stage two, as Mr X repeatedly requested. The Council’s refusal to do so was also fault.
29. When the Council did provide a stage two response in August, this response did not fulfil the requirements of the children’s statutory complaints procedure. The Council’s own policy includes: “Stage 2 involves an investigation by an independent investigating officer and an independent person. They make findings to the Children and Young People directorate, who will respond to your complaint.” This did not happen in Mr X’s case. The complaint was investigated by the manager of the service complained about, rather than someone from a different team within the Council. No independent person was involved in overseeing the complaint investigation. No adjudication was carried out, as required by the statutory procedure. The response was, instead, equivalent to a stage one complaint response, sent by the relevant service manager. These failings were fault.
30. If the Council considered its August letter to be its stage two response under the statutory children’s complaints procedure, it follows that it should have concluded by offering the option of escalation to a stage three review panel, rather than referring Mr X to us. This failing was also fault.
31. 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. This independence is not available to complaints put through the corporate complaints procedure. Because of this, we expect people to complete the children’s complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns.
32. There is fault causing Mr X an injustice in that the Council has failed to commence a stage two investigation as set out in statutory guidance, causing him uncertainty and delaying resolution of his complaint. Had the Council acted without fault, a stage two adjudication could have been provided in May 2024.
33. But it is important that Mr X’s complaints are considered at stage two because this will provide a proportionate response to his concerns, with an independent element. Below, I make recommendations to enable this.

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Agreed action

34. Within two weeks of the final statement, the Council will:
• Apologise in writing to Mr X to acknowledge the injustice caused to him and his family by the Council’s failings as identified above. The apology should be in accordance with our guidance, Making an effective apology;
• Pay Mr X a symbolic payment of £400 to acknowledge the injustice caused to him in terms of avoidable distress, worry, uncertainty and frustration by the Council’s faults;
• Ensure the stage two investigation into all of Mr X’s complaints has started, and will be completed in the required timescale. This should be within 25 working days from when the investigating commences. Where it is not feasible to complete the investigation within 25 working days, any extension should be agreed by the Complaints Manager, and – where possible – be with Mr X’s mutual agreement. The maximum permitted timescale for a stage 2 investigation is 65 working days; however, given the delays that have already occurred with complaint handling, we would encourage the Council to work towards the 25 working day timescale.
• If the outcome of the complaints procedure confirms there has been lost provision, the Council should consider offering additional provision to make up for the loss (e.g. additional respite).
• By training or other means, and with reference to our Guide for Practitioners: Children’s statutory complaints process, ensure the Council’s complaints team understands how to direct complaints though the statutory three stage process.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation with a finding of fault causing injustice by the Council because of its failure to commence a stage two statutory investigation under the Children Act 1989.

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Investigator's decision on behalf of the Ombudsman