Summary: Ms X complained the Council refused to consider her complaint about how it handled her daughter Y’s care, that it did not keep her informed about Y and did not try to reunite her with her daughter. The Council was at fault for not considering Ms X’s complaint through the children’s statutory complaints procedure. The Council will apologise for the frustration this caused Ms X and consider her complaint.

The complaint

1. Ms X complained the Council refused to consider her complaint about how it handled her daughter Y’s care, that it did not keep her informed about Y and did not try to reunite her with her daughter. Ms X stated this caused her extreme distress and anxiety and she wanted the Council to consider her complaint.

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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 significant injustice, or that could cause injustice to others in the future 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 this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I read the documents provided by Ms X and discussed the complaint with her on the telephone.
6. I considered the documents provided by the Council.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Duty to provide accommodation

8. Councils have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because:

• there is no-one who has parental responsibility for the child;
• the child is lost or abandoned; or
• the person who has been caring for the child is prevented, whether permanently or temporarily and for whatever reason, from providing suitable accommodation or care.

9. The council may not provide accommodation in these circumstances if the person who has parental responsibility objects. It can either provide the accommodation or arrange for accommodation to be provided. A child accommodated in this way is a ‘Looked After Child’ (LAC). (Children Act 1989, section 20)
10. Children aged sixteen or over can consent to being accommodated by the council without their parents’ consent.

Children’s Statutory Complaint Procedure

11. 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.
12. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
13. 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. A senior manager at the council should considers the IO report and any report from the IP and decide what the council’s response to the complaint will be, including what action it will take.
14. 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.
15. The guidance lists who may complain using the statutory procedure which includes a parent of a child or young person who is being looked after by the council. The council does not need consent from the child or young person to investigate a complaint from a person on this list. However, it may need consent from the child or young person to disclose information about them to the person making a complaint.

Information sharing

16. The Information Commissioner’s Office website states a child can exercise their rights over their own information as long as they are competent to do so. In Scotland, a person aged 12 or over is presumed to be old enough to make that decision but this does not apply in England. In England competence is assessed depending upon the level of understanding of the child (whether they have Gillick competency) and a child should not be considered to be competent if it is evident they are acting against their own best interests.
17. A parent or guardian can exercise a child’s rights under data protection when the child authorises them to do so, when the child does not have sufficient understanding to exercise the rights themselves, or when it is evident that this is in the best interests of the child.  

Gillick competency

18. Gillick competency is an approach to establishing if a child or young person is capable of making a decision in their own best interest. It is generally used in relation to medical matters but can also apply where a young person has strong wishes about their future living arrangements which may conflict with their parents' or carers' views.
19. In order to establish someone’s capacity to consent a council should consider:
• the child's age, maturity and mental capacity;
• their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact;
• their understanding of the risks, implications and consequences that may arise from their decision;
• how well they understand any advice or information they have been given;
• their understanding of any alternative options, if available; and
• their ability to explain a rationale around their reasoning and decision making.

What happened

20. Ms X has a daughter Y who lived at home with Ms X and her siblings. In 2021 the Council became involved with Y and her family. At the end of the year the Council put in place a section 20 arrangement for Y to be accommodated by it. At the time Y was 14.
21. Ms X complained to the Council in October 2023 about the way it had managed the care of Y. She said the Council:
• had not been supportive in trying to reunite Y with her and her family;
• had not kept her updated about Y’s care and incidents involving her;
• failed to respond to contact she made with it and concerns she raised;
• had not safeguarded her daughter’s welfare and allowed her to stay somewhere unsafe; and
• had not ensured Y had attended college.
22. Ms X stated this had caused her extreme distress and anxiety and she wanted her complaint to be investigated through the complaint procedure.
23. The Council responded in November 2023 and said that General Data Protection Regulations (GDPR) sets out when children reach the age of 12 they usually have the capacity to make their own decisions about information belonging to them. It said in those cases parents no longer have access rights to their children’s data without the child’s consent. It said Y was 16 and had refused for her information to be shared with Ms X. It said it could not assist Ms X further.

My findings

24. 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. Because of this, we expect council’s to complete the complaints procedure. I have therefore not investigated Mrs X’s concerns about how the Council managed the care of Y, or how it kept her updated and responded to her concerns.
25. Ms X raised a complaint about the Council’s actions in relation to a section 20 arrangement. This is a matter covered by the statutory children’s complaint procedure and so the Council should have considered it through that procedure.
26. The Council refused to consider Ms X’s complaint, on the basis Y did not consent to her information being shared with her mother. I am not persuaded by this argument for the following reasons.
• The guidance sets out that Ms X is entitled to make a complaint in her own right and Y’s consent is not required to consider the complaint.
• Ms X’s complaint included how the Council had responded to her concerns and contact, which was not reliant on Y’s personal information.
• The Council could consider Ms X’s complaint, and then decide what information it could and should share with Ms X about Y in responding to her complaint.
27. In addition to the above, the Council stated a child is considered competent to make a decision on their information being shared with a parent at the age of 12. That is incorrect and applies in Scotland only. In England the test is whether the child is Gillick competent, and whether sharing specific information is in their best interest. The Council did not set out how it had considered Y’s Gillick competency or whether her decision was in her own best interest.
28. The Council was at fault for not considering Ms X’s complaint through the statutory complaint procedure. This caused her frustration and avoidable time and trouble.

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Agreed action

29. Within one month of this decision the Council will:
• write to Ms X and apologise for the injustice caused to her by the Council’s fault; and
• begin an investigation of Ms X’s complaint at stage two of the children’s statutory complaint procedure.
30. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended.
31. Within one month of this decision the Council will remind relevant staff that:
• a lack of consent from a young person does not automatically prevent it from considering a relevant complaint through the children’s statutory complaint procedure; and
• where a young person has refused consent to share their information the test is whether the child is Gillick competent to make that decision, and whether it is in their best interest.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice and avoid recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman