Summary: We find fault with the Council for failing to record the full details and outcomes of a meeting with Miss B about contact arrangements for her children. We also find fault with the way the Council considered Miss B’s complaint during the statutory complaint process. This caused Miss B an injustice. The Council agrees actions to remedy the injustice.

The complaint

1. Miss B complains about the Council’s decision not to uphold one of her complaints in its adjudication and stage three panel findings.
2. She says the Council’s decision was not based on relevant information and ignored the stage two investigating officers’ findings.
3. Miss B says she suffered an injustice because the Council refused to pay the financial remedy the Investigating Officer recommended.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with a council’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 Miss B and considered the information she provided with her complaint. I considered information from the Council along with relevant law and guidance.
8. Miss B and the Council had the opportunity to comment on my draft decision. I carefully considered the comments I received before making a final decision.

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What I found

Law and guidance

Children’s services statutory complaints

9. The government sets out a three-stage procedure for councils to follow when looking at complaints about statutory social services functions. The handling and consideration of complaints consists of three stages: Stage 1 - Local Resolution, Stage 2 - Investigation and Stage 3 - Review Panel. (Department for Education, Statutory guidance for local authority children’s services on representations and complaints procedures, 2006)
10. Stage 1: Staff at point of service delivery try to resolve the complaint.
11. Stage 2: An investigating officer (IO) and an independent person (IP) investigate the complaint. The IO is responsible for the investigation and the IP ensures the process is open, transparent and fair.
12. The IO writes a stage 2 report which includes:
• details of findings, conclusions and outcomes are against each point of complaint; and
• recommendations on how to remedy any injustice to the complainant as appropriate.
13. Once the IO has finished the report, a senior manager should act as Adjudicating Officer (AO). The AO will prepare a response to the reports and should invite the complainant to an adjudication meeting, either before or after writing their adjudication. In the AO’s response, the complainant should be informed of their right to approach the Ombudsman at any time.
14. Stage 3: The complaint is considered by a review panel. The Panel must consist of three independent people.
15. Review Panels are designed to:
• listen to all parties;
• consider the adequacy of the stage 2 investigation;
• obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction;
• focus on achieving resolution for the complainant by addressing his clearly defined complaints and desired outcomes;
• reach findings on each of the complaints being reviewed;
• make recommendations that provide practical remedies and creative solutions to complex situations;
• support local solutions where the opportunity for resolution between the complainant and the council exists;
• identify any consequent injustice to the complainant where complaints are upheld, and to recommend appropriate redress; and
• recommend any service improvements for action by the council.
16. The Council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should be developed by the relevant Director / Director of Children’s Services setting out how the Council will respond to the recommendations and what action will be taken.
17. If the Council deviates from the panel’s recommendations it should demonstrate its reasoning in the response. In developing a response, the Council should invite comment from all the panel attendees.

What happened

18. Miss B and Mr C are separated, and their children live with Miss B.
19. In October 2017 they went to court about shared custody. The court made a contact order. The order said the school holidays custody should be shared with Mr C.
20. In December 2017 there was a meeting with Miss B, Mr C and two social workers about contact with their children over the Christmas holidays. The Council has no minutes or outcomes recorded for this meeting. Miss B says everyone at the meeting agreed the shared holidays would start in the new year (2018) after the Christmas holiday.
21. Miss B says one of the social workers advised Mr C to go to court to seek an enforcement order to secure contact with his children over the holidays.
22. In early 2018 Mr C took Miss B to court for failing to comply with the court order over the Christmas holiday period. The case was dismissed.
23. Miss B complained to the Council. It considered her complaints through the statutory complaints process. The Investigating Officer (IO) upheld two of the ten complaints and made recommendations in respect of one of the upheld complaints. The adjudicating officer did not agree with all the IO’s findings and recommendations. The Stage three panel agreed with the adjudication and did not uphold the disputed finding or recommendation.
24. Miss B was unhappy with the final decision and complained to the Ombudsman.

My findings

25. When a case has been considered through the statutory complaint’s procedure, we generally would not reinvestigate the substantive issues. The statutory procedure is designed to provide independence and detailed analysis of concerns raised. This means reinvestigation is neither necessary nor warranted, unless there are serious and fundamental flaws in the way the case was investigated.
26. I do not have any concerns about the statutory complaint’s procedure. I have not reinvestigated all the substantive issues. My investigation focussed on the issues Miss B remained unhappy with.
27. Miss B was unhappy with the Council’s decision not to uphold her complaint the Council’s actions caused Mr C to take her to court. Miss B says an enforcement order was unnecessary because during the meeting on the 7 December 2017 it was agreed they would split holiday contact evenly from 2018.
28. The stage two investigation upheld this part of her complaint. The investigating officer said the evidence suggested the meeting did take place and contact arrangements were discussed. They said:

“However, there are no notes on the system that detail the outcomes or decisions arising from the meeting… it does not appear that Mr C challenged Miss B for the expected days of contact during the Christmas period 2017. From this omission we are able only to surmise that an agreement for evenly split holiday contact to commence in New Year 2018”.

29. The IO recommended the Council reimbursed Miss B’s solicitors fees associated with the court hearing for enforcement of the contact order. They said:

“Neither officer X nor officer Y appear to have uploaded to MOSAIC (recording system) the minutes to this very important meeting and this leaves the authority responsible for the omission and the subsequent cost incurred by Miss B”.

30. The Council disagreed with the IO. In its adjudication letter it said:

“… I cannot agree with the decision to pay your (Miss B) court expenses as the investigators could not find evidence that the social worker (officer Y) told Mr C that he should take you to court”.

31. This part of the complaint was also considered by the stage three panel. The panel agreed with the adjudicating officer and did not uphold the complaint. It said:

“… the matter of reimbursement of legal fees is one primarily for the courts… the panel members did consider whether there was any evidence of malpractice on the part of the social worker if they had inappropriately advocated legal action, but we could not find evidence that they had”.

32. I agree with the IO findings on this complaint. The Council failed to record the details and agreed outcomes from an important meeting about contact that took place on 7 December 2017. The Council agreed the meeting took place.
33. The IO rightly pointed out the Council was unable to provide evidence to dispute Miss B’s version of events, which is supported by her own notes of the meeting and emails sent by Mr C after the meeting. On balance the evidence supports Miss B’s account that contact was discussed at the meeting on 7 December 2017, and it was agreed contact would be split evenly between the parents during school holidays from 2018.
34. The Council failed to properly consider the evidence the IO presented in relation to this complaint when it made its adjudication.
35. The adjudicating officer failed to recognise the lack of case recording after the meeting was fault. They failed to separate the finding of fault from the recommendation. They disagreed with the proposed recommendation but failed to recognise the fault and consider any injustice to Miss B.
36. The stage three panel also failed to separate the finding and recommendation. The panels explanation for why it did not agree with the IO’s recommendation show it failed to consider the alleged fault and whether it caused any injustice which needed to be remedied. Instead, it disagreed with the recommended action to reimburse the court costs and gave reasoning that was not relevant to the complaint issues.
37. I find fault with the Council for the way it considered Miss B’s complaint at adjudication and stage three of the complaint process. This caused Miss B further injustice because she experienced the additional time and trouble of bringing her complaint to us.
38. I also find fault with the Council for failing to fully record the minutes and actions of the meeting that took place on 7 December 2017. This is maladministration. This caused Miss B distress because the Council was unable to provide evidence of what was discussed and agreed at the meeting.
39. In response to our investigation the Council offered to pay Miss B £1000.00 in recognition of the injustice she experienced. We agree this is a suitable remedy.

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Agreed action

40. Within one month of my final decision the Council agrees to:
• Apologise to Miss B for the faults identified in this statement.
• Pay Miss B £1000.00 in recognition of the distress, time and trouble it caused her.
41. Within three months of my decision the Council agrees to:
• Remind its adjudication officers and stage three panel members of the difference between fault (maladministration), injustice and remedy.
42. The Council should provide the Ombudsman with evidence it has completed the above actions.

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Final decision

43. I find fault with the Council causing injustice.

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Investigator's decision on behalf of the Ombudsman