Summary: We find the Council at fault for delays in providing an outcome and failing to advise Mrs X of her rights under the children’s statutory complaints process. The Council also kept poor records and delayed in its communications with Mrs X. The Council should review procedures, apologise to Mrs X, make payments in recognition of uncertainty, frustration and time and trouble. It should also complete an investigation under stage two of ‘Getting the Best from Complaints’ within the timescales set out in that guidance.

The complaint

1. Mrs X complained the Council:
1. Did not manage her complaint about children’s services according to the statutory complaints procedure and delayed its communications.
2. Failed to action recommendations in a mediation report.
2. Mrs X says the Council left her family and her relative Y without necessary support which caused them uncertainty and distress. She says chasing the Council to resolve her complaint also caused her inconvenience.

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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 late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Mrs X complained to the Council in July 2020. She complained to us in July 2022 so matters between July 2021 and July 2022 are not late and I have investigated them. Matters between July 2020 and June 2021 are late, but Mrs X continually pursued issues with the Council and there is evidence of Council delays in completing the complaints process. I have therefore exercised discretion to investigate matters from July 2020.
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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How I considered this complaint

7. I spoke to Mrs X and considered documents from her and the Council. I considered relevant law and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

Statutory complaint procedure for children’s complaints

9. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s services. The accompanying statutory guidance (the Guidance), Getting the Best from Complaints, explains councils’ responsibilities in more detail.
10. Councils are required to follow the children statutory complaint procedure for a complaint made by a special guardian, about matters listed in the Guidance.
11. The first stage of the procedure is local resolution. Councils have up to 10 working days to respond or up to 20 working days for more complex complaints. A complaint is made on the date the local authority receives it.
12. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. Councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 65 working days to complete stage two of the process from the date of request.
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 days of the date of request, and then issue a final response within 20 days of the panel hearing.
14. The Guidance does not stop either the complainant or the local authority from suggesting Alternative Dispute Resolution (ADR), also called mediation. If agreed by both complainant and the complaint manager, the local authority should explore this option.
15. The Guidance says entering ADR does not restrict the complainant’s right to request a Review Panel at stage three if this is within the 20-working day timescale. Once the final date of the resolution process is agreed, should the complainant decide they want to invoke their right to a Review Panel, they can terminate ADR at any time.

What happened

16. Mrs X has a Special Guardianship Order for her relative (Y). This is an order placing a child or young person to live with an adult other than their parent(s). 

Mrs X’s first complaint

17. Mrs X complained to the Council about the lack of support from Children’s Social Care in early July 2020. Y’s case had been referred to the Council’s legal planning team. A legal planning meeting is an internal council meeting called by children’s services when a social worker is concerned children’s services may need to apply for a court order to safeguard a child. Parents or guardians do not have the right to attend the meeting, but they should receive a letter telling them what was decided and the next steps. The Council’s complaints team (CT) informed Mrs X it could progress with the children’s statutory complaints procedure after the legal planning meeting.
18. Mrs X was unhappy with the actions agreed at the legal planning meeting. On 20 November, she complained again about the Council’s lack of social care support, and the CT reopened her complaint. The records show the Council needed additional time to confirm consent issues.
19. The records show the CT emailed Mrs X on 4 December and advised her complaint had been processed. In mid-December the CT wrote to Mrs X and apologised for delay due to manager absence. It said her complaint was escalated with a different manager to expedite a response. Mrs X said she did not receive any further updates.
20. The records indicate children’s services had further involvement with Y and Mrs X in this period as he was taken into police protection and temporarily accommodated in a children’s home. Mrs X explained this was a very challenging time for her and her husband and they did not feel supported.
21. The CT later emailed Mrs X in February 2021 and advised a children’s services manager had recently met with Mrs X as a part of its on-going efforts to resolve Y’s situation. The manager had advised Mrs X was happy with a new plan to support Y and the family. The CT therefore asked Mrs X if she was happy to close her complaint. Mrs X said this meeting did not happen and she only received a letter at the time.

Mrs X’s second complaint

22. Mrs X said she did not agree with the manager’s findings and believed Y’s proposed support plan was inadequate. She said the Council also had not sent a daily support timetable for Y as promised or the minutes of various meetings with the Council over the previous year.
23. The Council confirmed Mrs X’s new complaint included the substantive issue of social care support she had originally complained about. It also advised Mrs X she would receive a response by 3 March.

The Council’s stage one complaint response

24. In its stage one response on 31 March 2021, the Council:
• Confirmed Mrs X had been sent minutes of all relevant multi-agency meetings. However, Mrs X maintains they were not received by her.
• Accepted it had failed to complete and provide a timetable as agreed.
• Explained Y was receiving adequate support according to the plan discussed at various meetings where Mrs X had been present.
• Summarised the support plan which included crisis intervention sessions to manage Y’s anxiety, five weekly sessions of specialist educational support (NUDGE), weekend and weekday youth work one-to-one support, it had also explored finding Y a specialist school and tutor and family therapy had also been offered.
25. Mrs X was unhappy with the Council’s response and asked for her complaint to be to be escalated to stage two.
26. In April, the Council acknowledged Mrs X’s request. It also advised it could address the complaint issues, if she agreed, by a review by a senior manager, mediation, or an independent investigation.
27. In early May, the Council telephoned Mrs X to discuss her preferred options but was unable to establish contact.
28. In late June, Mrs X contacted the Council. She said a further review meeting was taking place with officers shortly, after which she would consider her options.
29. In early July, Mrs X contacted the CT to ask for an update about the recent review meeting. The CT clarified the complaints process was not about on-going issues but investigating actions and decisions already taken. It acknowledged Mrs X’s main concern was arranging suitable support for Y and offered Mrs X mediation as a form of alternative dispute resolution (ADR). It explained this would be with a senior manager and an independent facilitator.
30. The Council told us that it did not explain to Mrs X that mediation would end the statutory complaint procedure.

Mediation

31. Mrs X and relevant council officers attended mediation in August 2021. After the mediation meeting, the independent facilitator submitted a report which recommended the Council:
1. Improve its communications with Mrs X and keep her updated on any separate plans and discussions it had with Y.
2. Provide an explanation for not agreeing to an additional 15 hours of family support each week and consider reassessing the situation.
3. Address Y’s underlying mental health issues in conjunction with social services and CAMHS.
4. Address Y’s failure to attend school and his missed education by providing suitable alternative provision if necessary and ensure future college transition.
32. Mrs X said the Council did not complete any of the recommendations set out in paragraph 31. She therefore emailed the CT in September, October and November seeking updates. The CT acknowledged Mrs X’s contact each time and said it would get back to her.
33. The Council has provided a copy of a letter dated 10 September it says was sent to Mrs X, but she did not receive. The Council apologised for the delay. It included a copy of the mediation report and accepted there were actions and recommendations which remained outstanding. It said it would monitor these through to completion. The Council informed Mrs X this ‘concluded stage two of its complaints process’ and Mrs X could approach the Ombudsman if she was unhappy with the outcome.
34. Mrs X sent a further e-mail in April 2022 about the outstanding recommendations. The CT apologised again and explained it was waiting for an update from the children’s services team about the outstanding actions.
35. Mrs X said she did not receive an update and sent a further email to the CT in July 2022 expressing frustration with the lack of information and progress. She requested a full response and asked how to formally escalate her complaint. Mrs X said she did not receive a response.

Mrs X’s third complaint

36. In August 2022, Mrs X submitted a further complaint on the Council’s website about its failure to implement the August 2021 mediation report.
37. In its email response a few days later, the CT apologised for certain recommendations not being followed or completed. It also upheld Mrs X’s complaint about delays.
38. Unhappy with the Council’s response Mrs X approached the Ombudsman.

The Council’s response to our enquiries

39. The Council said the mediation report contained both agreed and suggested actions and no timescales were set for completion. It said it could not provide specific evidence of how each recommendation was met.
40. Responding to enquiries, the Council told us since July 2022, it has changed its procedures to ensure conversations with parent and carers that result in ADR are documented and evidenced. It said explanations are provided with regards to the implications of opting for ADR as opposed to following the statutory complaints process. It believes this will ensure families can make more informed decisions about the complaints process.

Was there fault and did it cause injustice?

i) Mrs X says the Council did not manage her complaint about children’s services according to the statutory complaint procedure and delayed communications.

Mrs X’s first complaint

41. The evidence shows the Council properly acknowledged Mrs X’s July 2020 complaint but decided not to progress it at that point due to legal planning. The Council explained the reasons to Mrs X and agreed to consider any residual concerns. I do not find any fault in relation to this point.
42. On 20 November, Mrs X contacted the Council again to complain. following the end of legal planning. The Council had 10 working days from this point to send Mrs X a stage one response as set out in the Guidance. The Council failed to issue a stage one response which was fault causing avoidable frustration and Mrs X was also denied the opportunity to escalate her complaint to stage two in line with the Guidance.

Mrs X’s second complaint

43. The Council reviewed Mrs X’s further complaint on 23 February. The records indicate the Council dealt with it as a new complaint and told Mrs X she would receive a response by 3 March. The Guidance says councils should respond to most stage one complaints within 10 working days. It provided its stage one response on 31 March, which is longer than set out in the Guidance. The delay was fault, but as the response was provided so, the injustice to Mrs X is not significant.
44. There was no fault in the Council offering ADR to Mrs X as the Guidance envisages this as a way of resolving disputes. I am satisfied the Council arranged mediation within a reasonable timeframe based on availability of the parties.
45. However, it is clear from Mrs X’s communications that she did not get a copy of the mediation report or outcome letter that the Council sent in September 2021, although there is no evidence to indicate the Council failed to send it. However, the Council could have sent her another copy as soon as she chased this up. The failure to do so was fault causing avoidable frustration about the outcome to mediation and time and trouble in chasing up the letter and report by several emails to the CT.
46. The Guidance suggests a complainant might not be able to escalate their complaint to a review panel (at stage three of the statutory process) if they have completed ADR. My view is this did not apply to Mrs X’s case as she had agreed to ADR at the conclusion of stage one and before receiving a at stage two report and adjudication letter. So, when she expressed dissatisfaction with the outcome of mediation in August 2022, the Council should have re-started the statutory complaints process, organised an IO and IP and issued a stage two report and adjudication letter within the timeframes set out in the Guidance. The failure to restart the statutory process was not in line with Guidance was fault and meant Mrs X did not get a full response to the original complaint she raised.

ii) The Council failed to action the recommendations in a mediation report

47. The Council’s mediation report made four recommendations. Responding to our enquiries, it said some were ‘suggested’ actions. The Council also accepted there was no timescale for completion of any of the actions in the report. My view is the report and follow up action was unclear and caused avoidable confusion. Mrs X had no idea what she could expect from the Council as a result of mediation. And the Council has not been able to provide evidence of follow-up or checking of the plan to ensure actions were completed. This was poor communication and record-keeping and was fault causing avoidable uncertainty and frustration.

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Agreed action

48. The Council should within one month of my final decision:
• Restart stage two of the statutory complaint procedure based on Mrs X’s original complaint. We will suggest a suitable statement of complaint under separate cover. The Council should then promptly seek Mrs X’s confirmation that it covers the issues she wants raised. It should appoint an IO and IP in line with the Guidance and send an investigation report, IP report and adjudication letter which is compliant with the Guidance including the 65 working day timescale for completion.
• Apologise to Mrs X for the avoidable frustration, uncertainty and time and trouble in complaining and make her a payment of £500 to reflect this. This is at the higher end of our Guidance on Remedies because of the significant delays in complaint handling and time and trouble Mrs X spent chasing the Council.
49. Within three months of my final decision, the Council needs to:
• Review its procedures for handling statutory complaints about children’s services so they are clear that complainants can progress to stage two if they are unhappy with the outcome of ADR.
• Review the use of mediation/ADR and ensure that the process sets out how recommendations of an independent facilitator are to be considered, actioned and communicated to a complainant.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I find the Council failed to provide a complaint outcome and advise Mrs X of her stage two rights in line with the statutory complaints process guidance. The Council also failed to complete some mediation recommendations and delayed responding to Mrs X’s communications. The Council should apologise to Mrs X, make payments in recognition of her uncertainty, frustration and inconvenience It should also complete an investigation under stage two of Getting the Best from Complaints within the timescales set out in that guidance and review its procedures to prevent recurrence.
52. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman