Summary: Mr B complained that the Council refused to consider his complaint at stage three of the statutory children’s complaint procedure. We found the Council delayed excessively in completing the stage two investigation, but we do not find fault with the decision not to proceed with the stage three Review Panel. The Council has agreed to pay Mr B £250 and consider if it needs to take action to improve the availability of complaint investigators.

The complaint

1. Mr B complained that the City of Bradford Metropolitan District Council (the Council) unreasonably refused to consider Mr B’s complaint at stage three of the statutory complaints procedure. It also delayed in completing the first two stages of the complaints procedure. This has caused Mr B frustration and distress.

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What I have and have not investigated

2. I have not investigated the issue of Mr B’s contact with his children as that is a matter for the courts and he should seek legal advice on his options.

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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 the decision making, 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)

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

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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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
8. Stage one should be completed in a maximum of 20 working days, stage two in 65 working days and stage three within approximately 50 working days, in total 27 weeks.

What happened

9. Mr B separated from his partner (Ms C) and left the family home in January 2021. He continued to have regular contact with his two children. The Council had been involved with the family for several years and the children had been subject to child protection plans until late 2020 when they were stepped down to child in need cases. Mr B has a mental health condition.
10. In February 2021 the Council received a referral from the police following an allegation of domestic abuse against Mr B by Ms C. A social worker visited Ms C and she made a further allegation of rape against Mr B but did not want to press charges. Mr B continued to have contact with his children while Ms C was at work.
11. In April 2021 the social worker carried out a risk assessment. They recommended a safety plan, where Ms C would not allow Mr B to stay in the property overnight and would leave when Ms C returned from work and a neighbour was present for family contact handover. In May 2021 during a case supervision, the team manager noted gaps in the assessment linked to Ms C’s allegation of rape and the risk of sexual harm. The team manager recommended that the arrangement should stop while the risk assessment was updated.
12. The team manager said to Mr B during a telephone call in May 2021:

We cannot prove or disprove [Ms C’s] allegations. We need to risk assess and make recommendations to ensure the children are not harmed by this.

13. The team manager said he tried to explain to Mr B that there was an indirect risk of harm to the children if they were exposed to the alleged sexual harm to Ms C. He said the conversation was difficult and Mr B did not want to reflect on the situation. The team manager also raised concerns that Mr B had been verbally abusive towards the social worker and made derogatory comments against her. Mr B was also verbally abusive to the team manager during the telephone call before he hung up.
14. In June 2021 the Council completed a risk assessment and agreed a new safety plan. It said it tried to involve both parents, but Mr B withdrew and refused to work with the Council. Ms C made the decision to stop Mr B having contact with the children in the family home.

Stage one complaint

15. Mr B made a complaint to the Council saying the Council had stopped contact with his children and alleged he was a risk to them. This was an abrupt change with no explanation. Mr B also complained that the allegation he was a continued risk to Ms C was wild and malicious and should not be made by a professional.
16. The Council responded at stage one of the statutory complaints procedure on 24 June 2021. It upheld the complaint about the change in view on contact arrangements but did not say why. It also said that it was Ms C who had consistently made the allegation of rape. The Council did not know if the allegation was true or not, but it had to take the allegation seriously. This meant that Mr B was assessed as posing a level of sexual risk to Ms C and the children.
17. Mr B was unhappy with this aspect of the response and requested his complaints be escalated to stage two on 19 July 2021. The Council sent a follow-up response on 6 August 2021 saying it did not consider there were grounds to go to stage two. In the response it said:

“There is nothing in the case notes for your children of CSC taking the view that you are a sexual risk to your children.”

18. On 19 August 2021 the Council sent a second stage one response on additional complaints the Mr B had made.

Stage two complaint

19. In September 2021 Mr B confirmed he wanted his complaint to go to stage two of the procedure. He complained about the Council’s statement that he was a sexual risk to his children, the Council’s attitude towards his mental health, incorrect information on the files about him and a possible data breach when information was sent to the wrong address.
20. The Council added his case to the stage two allocation list but there were insufficient investigating officers to deal with them.
21. Mr B sent abusive and threatening emails to the Council in early October 2021.
22. An Investigating Officer (IO) and Independent person (IP) were allocated to the case on 24 January 2022. Mr B raised concerns about the IO in early February 2022 because she had been involved at stage one. The Council allocated the case to a second IO on 7 February 2022. Mr B was unhappy and sent an abusive email. They met with Mr B and the IP on 9 February 2022 and Mr B agreed the statement of complaint on 9 March 2022.
23. The IO went off on sick leave. In April 2022 the Council looked for a new IO. Mr B left an abusive and threatening message complaining about the delay in dealing with his complaint. The Council wrote to him apologising for the delay but warned him about the message he had left.
24. The Council allocated the case to a new IO who started on 6 May 2022. They agreed an amended statement of complaint with Mr B on 9 May 2022. He complained that:
• the Team Manager had said he was a sexual risk to Ms C and his children, yet the stage one response said there was nothing in the records to say he had been assessed as a sexual risk to either Ms C or the children.
• he had been given different reasons as to why contact with his children was not allowed.
• the files refer to his mental health, but the Council had never asked him about it and say that is why he does not comply with them.
• the files contain inaccurate information about his medical conditions and alcohol consumption. He does not drink.
• he disputed that he smokes drugs in the presence of his children.
• the new social worker was not looking at the case with a fresh pair of eyes but is prejudiced against him.
• the Council should have got a court order if they wanted to stop him seeing his children.
25. The stage two report was completed on 28 June 2022.
26. In July 2022 Mr B sent several more abusive emails expressing frustration at the delay and the continued lack of contact with his children. He threatened violence to Council staff and to kill himself. He also sent an email to us threatening to burn down the Council offices. The Council raised concerns with the police about the communications from Mr B. The police gave advice to Council staff and said they would carry out a welfare check on Mr B. After the visit they reported back to the Council that Mr B had sent the messages on impulse as he had not received a response to his complaint and was not happy about not having contact with his children. He said he would not send any more abusive emails.
27. A week later he sent another email calling the Council staff ‘idiots’
28. The Council sent the report and its stage two response to Mr B on 2 August 2022.
29. The IO partially upheld the complaint about the issue of risk. They concluded that while the Council had to ensure that the children were safe and mitigate any risk to them, the explanation given by the team manager had contradicted the stage one response and it would have been good practice to send a letter to clarify the Council’s view. In respect of the contact with his children, they said that the Council acted reasonably in considering the allegation of rape and the abusive communications with staff, as its role was to keep Ms C and the children safe. But it was Ms C’s decision to stop contact, not the Council’s. They upheld one of the complaints about inaccurate information on the files, one about a possible data breach and one about an officer refusing to consent to being recorded. They did not uphold the other complaints.
30. The IO recommended that the Council apologise to Mr B for the data breach, improve its case recording, address verification and communication with people where serious allegations are made.
31. Mr B sent 19 emails expressing his dissatisfaction with the report. Some contained abusive language and derogatory comments about Council staff. He was very unhappy with the finding in respect of the assessment of risk. He said there was no evidence that an assessment had been done and the Council had changed its mind with no reason, first saying he was a risk and then saying there was no evidence he was a risk. He sent five more emails the following day. The Council said they were slightly racist in tone. The Council contacted the police on 3 August 2022 who said the communication could be harassment and that the Council could prosecute Mr B.
32. Mr B said he wanted to proceed to stage three of the complaints procedure and the Council suggested a date for the Review Panel in early September 2022. Mr B sent some more abusive emails but agreed to the date. The Council asked him not to use abusive language in his emails. He sent some more in reply and said he did not care about the abusive language. On 19 August 2022 the Council cancelled the panel due to the tone and threats in Mr B’s email. It said it was not safe to continue and directed Mr B to us.
33. Mr B complained to us in September 2022.

Analysis

Delay

34. The Council took eleven months to complete stage two of the complaints procedure instead of the required 13 weeks. I accept the Council kept Mr B informed and took action when the initial IO went on long-term sick leave, but the delay was fault which caused Mr B significant frustration and distress.

Stage three

35. Mr B had been abusive and threatening to the social worker in April/May 2021 and continued to send abusive and threatening emails to the Council in addition to a threatening telephone message. I understand Mr B was upset and frustrated by the lack of contact with his children, but this does not justify his behaviour. The Council asked him to stop several times. The police considered there was sufficient evidence to prosecute Mr B for harassment and also asked him to stop. He refused to do so.
36. The Council has a duty of care to its staff. In these circumstances and with the concern that Mr B would have access to participants’ email addresses, I consider the Council was justified in its refusal to proceed to a stage three Review Panel.

Risk assessment

37. As I agree with the Council’s decision not to proceed with the stage three, I have considered the main issue Mr B has raised in his complaint: that the Council without justification, said he had been assessed as a sexual risk to Ms C and his children and then said in the stage one complaint response that there was no information on the files to say he was a sexual risk to his children.
38. It was entirely reasonable for the Council to consider the implications of Ms C’s allegation of rape. The Council’s primary role was to consider and protect the welfare of the children and it cannot ignore serious allegations of this nature, even when they are disputed. But I agree with the finding of the stage two process that this concern was poorly communicated and explained to Mr B. The initial explanation given in the stage two response could be interpreted as saying that Mr B posed a sexual risk to the children. This is what Mr B objected to and continues to complain about.
39. I welcome the team manager’s attempt to correct that view by explaining during the telephone call in May 2021 that the allegation of rape (along with evidence of abusive behaviour to both Ms C and Council staff) raised concerns that he posed an indirect risk to his children as they may witness or be exposed to such behaviour. But I also agree with the stage two finding that it would have been good practice to have followed this up with a letter, given Mr B’s resistance to the suggestion that he posed a potential risk to his children in any way.
40. The situation was then exacerbated by the second stage one response which said there was no evidence in the case records that Mr B posed a risk to his children. I think the Council was trying to correct the clumsiness of the initial explanation but failed to build on the concept of indirect risk explained by the Team Manager in May 2021. Mr B was understandably confused by these contradictory messages and assumed that the Council had been lying when it said he had been assessed as posing a risk to his children. This was fault which caused Mr B distress.
41. But again, it did not justify Mr B’s abusive and threatening messages. Neither did it impact on the issue of contact with his children as it was Ms C’s decision to stop contact and Mr B can challenge this in court.

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Agreed action

42. In recognition of the injustice caused to Mr B by the delay to the complaints process and the confusing response to one aspect of his complaint, I recommended the Council within one month of the date of my final decision:
• pays Mr B £250; and
• provides an update on the operation of its stage two investigations and considers whether it needs to take further action to improve the supply of complaint investigators.
43. The Council has agreed to the recommendations and provided learning points arising from the complaint in terms of the operation of the stage two complaint process. The Council should provide us with evidence it has complied with the payment to Mr B.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman