Summary: Mr C complained on behalf of Miss B that the Council had failed to consider her complaint about children’s services through the statutory complaints procedure, delayed in communicating with her, been unclear about which process it was using and agreed to a remedy which it did not implement. We found significant fault by the Council. It has agreed to complete a proper stage two investigation, apologise to Miss B and pay her £500. It has also agreed to review its complaints procedure for the future.

The complaint

1. Mr C (Miss B’s representative) complained on behalf of Miss B that the London Borough of Lambeth (the Council) in respect of her complaint about children’s service:
• initially refused to deal with the complaint through the statutory complaints process, saying it should be dealt with as a legal issue;
• agreed to consider the complaint at stage one of the statutory children’s process, following our decision 22005349;
• issued a stage one response in October 2022 but it was unclear under which complaints process this was considered;
• sent an email on 16 January 2023 accepting it had been at fault, offering a personal adviser, pathway plan and £500 along with additional compensation for the services Miss B had missed; and
• failed to pay additional compensation as offered in that email, despite Mr C chasing the matter on a number of occasions.
2. This has caused Miss B distress and frustration.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

Back to top

How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant, and the Council. I have also considered the guidance on the statutory children’s complaints procedure, the Ombudsman’s focus report ‘Are we getting the best from children’s social care complaints?’ published in March 2015 and guide for practitioners about the statutory complaints procedure published in March 2021
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Statutory complaints procedure

7. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage two of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review.
8. Stage one should be completed in a maximum of 20 working days, stage two in 25 working days (with an extension to 65 working days permitted where appropriate) and stage three within approximately 50 working days, in total 27 weeks.

The law and guidance

9. The Children Act 1989 Representations procedure (England) Regulations 2006 set out the operation of the statutory complaints procedure. Regulation 8 says:

“A local authority shall not consider, or further consider, representations under these Regulations to the extent that the representations concern any matter in relation to which -

(a) the complainant has stated in writing to the local authority that he is taking, or intends to take, proceedings in any court or tribunal…

and the local authority decide that consideration, or further consideration, of the representations under these Regulations would prejudice the conduct of any proceedings or investigation falling under this paragraph.”

10. Regulation 8 goes on to say that when the proceedings were completed or discontinued the complainant could resubmit the complaint to the council within a year and the council should consider it through the complaints procedure.
11. Regulation 9 says a complaint must make the complaint no later than a year after the grounds to make the representations arose. But it can consider older complaints where it would not be reasonable to expect the complainant to have made representations within the time limit and as long as it was still possible to consider the complaint effectively and fairly.
12. The statutory guidance, Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others (2006), says that a council has discretion in deciding whether to consider complaints where to do so would prejudice any court proceedings.
13. In respect of time limits, the guidance says decisions should be made on a case-by-case basis with a general presumption in favour of accepting a complaint. It gives possible grounds for accepting older complaints, including where there are genuine issues of vulnerability, there is still benefit to the complainant in proceeding and it is still possible to carry out a fair and effective investigation.

Early referral to the LGSCO

14. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all, or all significant complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.

Homeless 16/17 year olds

15. In a key case (the Southwark judgement), the court set out the principles which councils should follow when deciding if it has a duty to accommodate a 16 or 17 year old under section 20 of the Children Act 1989.
16. Statutory guidance published in April 2010, Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation lays out the duties of housing and children’s services departments to work together to ensure 16 and 17 year olds are suitably accommodated.
17. The 2010 guidance (paragraph 3.1) provides: “where a 16/17 year old seeks help from local authority children services … as appearing to be homeless, children services must carry out an assessment of what duties, if any, are owed to them … where the duty in s20 of the 1989 Act is triggered the local authority are under a duty to accommodate the child.”
18. This guidance also states at paragraph 3.41: “Where a young person says they do not wish to be accommodated, a local authority should reach the conclusion that the young person’s wishes are decisive only as part of an overall judgement of their assessed welfare needs and the type and location of accommodation that will meet those needs.”

Leaving care

19. The Children Act 1989 places duties on councils to provide ongoing support for children leaving care. These duties continue until they reach age 21. If the council is helping them with education and training, the duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday). 
20. Councils should appoint each care leaver with a personal adviser, and each care leaver should have a pathway plan. The personal adviser will act as a focal point to ensure the care leaver is provided with the right kind of support. The pathway plan should be based on a thorough assessment of the person’s needs. Plans should include specific actions and deadlines detailing who will take what action and when. They should be reviewed at least every six months by a social worker. 
21. Pathway plans should continue for all care leavers continuing in education or training. The plan should include details of the practical and financial support the council will provide. 
22. The guidance accompanying the Act says that when young people leave their care placement the council must ensure their new home is suitable for their needs and linked to their wider plans and aspirations. Moving directly from a care placement to living independently is often too big a step for young people. It is therefore good practice for councils to commission semi-independent and independent living options with appropriate support

What happened

23. Miss B approached the Council in August 2019 as homeless. She was 17 and had moved out of her parent’s home in December 2018, following a breakdown in the relationship. She had been sofa-surfing since then. The Council carried out an assessment.
24. Miss B says, as part of that assessment, the social worker gave her a piece of paper with three accommodation options: foster care, a hostel or supported accommodation. Each had a short description and a tick-box by it. Miss B says the social worker said if she opted for supported accommodation, she would have to have a social worker and regular meetings. It was framed in a negative way.
25. She says she was not advised about the services that would be available to her in the supported accommodation, that she would not have to pay for the accommodation, and she would be entitled to services as a care leaver until she was 25.
26. Miss B chose the hostel option and moved into a hostel the following day. She was advised by her keyworker on several occasions that she would be moved into affordable accommodation, but this did not happen.
27. In October 2021 Mr C sent a pre-action protocol letter (the first stage in judicial review proceedings) to the Council, alleging it had acted unlawfully in failing to accommodate her in 2019 as she was a child in need requiring accommodation. It had also failed to give her sufficient information about the consequences of turning down the supported accommodation.
28. The Council replied in October and November 2021 refusing the claim. Miss B did not start any court action.
29. On 15 March 2022 Miss B made a formal complaint about the issues Mr C had raised previously.
30. The Council’s complaints team replied saying:

“As this is a complaint which was issued following a pre-action letter to the local authority, it would fall outside of the statutory complaints process.

This is because the grounds and intent are very likely to be the basis of a further legal challenge towards the council. The statutory complaints process, as you know, does not allow for two investigations (legal and statutory complaints) to run in tandem, the Ombudsman will not investigate a complaint which falls within the legal remit and therefore this complaint should be responded to via legal.”

31. The Council’s legal services team said there was no current legal case so there would not be two processes running at the same time. But the complaints team argued it was a matter for legal services given there was a request for compensation. A senior manager in children’s services decided it should be dealt with by the legal route.
32. In April 2022 the Council wrote to Miss B saying it was not appropriate to deal with the case by the complaints process. In July 2022 the Council responded again explaining that the complaints process was not the appropriate route to make a legal challenge, because any investigation would prejudice legal proceedings. It also maintained its view that there was no legal merit to the claim: Miss B had rejected the option of supported accommodation and the complaint was now out of time. Mr C complained to us.
33. On 12 September 2022 we decided that the Council should put the complaint through the statutory complaints procedure and complete a stage one response within a month.
34. On 25 October 2022 the Council sent a complaint response. It concluded it had complied with its statutory duty and advised Miss B correctly regarding the accommodation duty. She had received sufficient information to make an informed decision. It did not provide any evidence to support its decision and said Miss B had the right to ask for her complaint to be reviewed.
35. On 24 November 2022 Mr C escalated the complaint to stage two asking the following:
• Confirm that the Council accepts that Miss B should have been accommodated under s20 Children Act 1989 in 2019.
• Confirm that the Council now accepts that a duty is owed to Miss B as a former relevant child.
• Appoint a personal adviser for Miss B.
• Draft a pathway plan for Miss B.
• Confirm that the Council accepts that the June 2019 joint protocol, as amended with section 3.12 ('Accepting or refusing a Section 20 duty), was unlawful and could not facilitate an informed decision on the part of Miss B.
• Pay Miss B £500 for the distress and anxiety that has been caused by the Council's actions.
• Provide additional compensation for Miss B equivalent to the value of the services she would have received had she been a looked after child and supported as a former relevant child immediately from the age of 18.
36. The Council responded on 5 January 2023. It said the complaint was a ‘final review’ and the complaint was now being handled by Children’s Social Care as it was outside the jurisdiction of the complaints service. It had been assigned to a manager who would respond to each of the matters raised in the complaint letter. It said Miss B could complain to us if she remained dissatisfied.
37. On 16 January 2023 the Council sent an email to Mr C saying it had reviewed Miss B’s complaint and would take the following actions:
• It accepted that it should have accommodated Miss B and will now accept a duty to her as a former relevant child.
• It will appoint a personal adviser for Miss B and draft a pathway plan for her.
• It will pay her £500 for the distress and anxiety caused by the Council’s actions.
• It will provide additional compensation for Miss B ‘equivalent to the value of the services she would have received had she been a looked after child and supported as a former relevant child immediately from the age of 18.
38. It appointed a personal adviser on 25 January 2023, who prepared a pathway plan with Miss B in May 2023. This included support and advice on securing more suitable housing, obtaining benefits she may be entitled to and financial assistance with education and setting up a home. The Council also paid the £500. But despite Mr C chasing the Council on several occasions it did not make any further payment.
39. In June 2023 Mr C complained to us.
40. In response to my enquiries the Council has said it ‘has already paid £500 compensation as recommended by the LGSCO’ and ‘will pay any additional compensation that we may recommend’.

Analysis

41. The children’s complaints procedure is a statutory procedure which the Council has a duty to follow. Although Miss B indicated in 2021 that she wished to pursue legal action against the Council she did not do so. Then in March 2022 she made a formal complaint. We decided in September 2022 that the Council should consider the complaint through the statutory procedure as there were no ongoing legal proceedings. Its legal services team also appeared to agree that there was no reason not to deal with the matter as a complaint because there were no concurrent court proceedings.
42. The Council agreed to this course of action but has not carried it out. It sent a stage one response six weeks after our decision which appeared to be sent under the corporate complaints procedure as it only gave Miss B the option of a review rather than a stage two investigation. It also gave no evidence or reasoning to support its view that the Council had acted correctly in 2019 when advising Miss B about her accommodation options. This was fault.
43. When Mr C escalated the complaint to stage two the Council did not follow the statutory procedure but once again incorrectly stated that the matter fell outside the complaints procedure and was being dealt with separately. It did not appoint an Investigating Officer or an Independent Person, it did not carry out any investigation, produce any evidence or reasoning for its change of view but just agreed to some of Miss B’s requests. This was fault as it denied Miss B the opportunity to fully understand what had happened in her case and why and the opportunity to request a stage three Review Panel. It also meant the Council did not consider any changes to its procedures or policies to ensure the same significant fault did not recur in other cases. The fault was exacerbated by the fact that we had already said in September 2022 that the complaint should be considered under the statutory procedure.
44. The Council was further at fault for agreeing to make a further payment to recognise the services Miss B missed out on as a care leaver but then not making the payment, forcing Mr C to come to us. The Council now wants us to make a recommendation as to how much to pay.
45. I am concerned that the Council has completely circumvented the statutory procedure, not carried out a proper investigation to establish the facts of the case, how and why the fault occurred and the impact on Miss B. As a result, it has been unable to decide on an appropriate remedy or put steps in place to prevent the fault recurring. None of the criteria for early referral to the LGSCO have been met. So, I do not consider it is reasonable for the Ombudsman to step in and complete the investigation on the basis of such inadequate information. I would also point out we did not recommend the payment of £500: this was requested by Mr C and the Council agreed to it.
46. I realise Miss B has already waited a very long time for the Council to properly consider her complaint, but I do not have sufficient information to reach a safe conclusion on an appropriate remedy. We also consider remedies in a different way and would be likely to recommend a symbolic payment to recognise the injustice to Miss B rather than ‘compensation representing the value of the services she missed out on’, which is likely to be a significantly lower amount.

Back to top

Agreed action

47. In recognition of the injustice caused to Miss B, I recommended the Council:
• within two weeks of the date of my final decision:
1. appoints an Investigating Officer and an Independent Person and completes a stage two investigation completed within 25 working days if possible. If an extension is required, the Council should inform us as well as Miss B and Mr C.
• within one month of the date of my final decision:
1. apologises to Miss B; and
2. pays her £500 for the continued failures to deal with her complaint and put right the injustice she has experienced since August 2019.
• within three months of the date of my final decision:
1. carries out a comprehensive review of the operation of the statutory complaints procedure to ensure:
1. people are not denied the opportunity to use the procedure where legal action has been threatened but not pursued. I would suggest it considers introducing a timeframe after which it will accept a complaint if court proceedings have not started;
2. the consideration of whether to accept late complaints is done in accordance with the statutory guidance; and
3. complaints staff are aware that when the Council agrees to our recommendations, we expect the Council to implement them within the specified timescale or come back to us explaining why it is not now possible.
48. The Council has agreed to the recommendations and should provide us with evidence it has complied with the above actions.

Back to top

Final decision

49. I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman