Summary: Mrs X complained about how the Council’s children’s services department dealt with her and her daughter. The Council was at fault for failing to use the children’s statutory complaints procedure to respond to Mrs X’s concerns. This caused Mrs X frustration and meant she went to undue time and trouble pursuing her complaint through the wrong procedure. To remedy her injustice, the Council will apologise, pay Mrs X £200, begin to investigate a complaint under the statutory procedure and issue a reminder to staff.

The complaint

1. Mrs X complained about how the Council’s children’s services dealt with her and her daughter. Mrs X said this caused her significant distress and frustration.

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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 have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint;
• the relevant law and guidance and the Ombudsman's guidance on remedies.
6. Mrs 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 law and guidance

Child in need

7. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
8. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

Children’s statutory complaints procedure

9. The law sets out a three-stage procedure councils must follow when looking at complaints about children’s social care services. This includes complaints about actions councils take under section 17 of the Children Act 1989. 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.
10. The first stage of the procedure is local resolution. 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. 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.
11. The guidance lists who may complain using the statutory procedure in their own right. This includes any child or young person, or their parent. There is no requirement for a complaint to be made on behalf of a child. 
12. The council does not need consent from the child or young person to investigate a complaint from an eligible person. However, it may need consent from the child or young person to disclose information about them to the person making a complaint.

Corporate complaints procedure

13. For complaints about children’s services which do not come under the statutory procedure, councils typically respond under their corporate complaints procedure. The corporate complaints procedure varies from council to council. The Council’s procedure sets out a manager from the service complained about will respond to stage one complaints. Stage two complaints are responded to by a senior manager.

What happened

14. The Council became involved with Mrs X’s teenage daughter, Y, under child in need legislation. In October and December 2022, Mrs X made complaints to the Council about its actions.
15. The Council responded to Mrs X’s complaints under the corporate complaints procedure.
16. Mrs X remained dissatisfied and complained to the Ombudsman. We told the Council we thought it should have responded to Mrs X’s complaint using the children’s statutory complaints procedure. We asked it to begin an investigation under stage two of the statutory procedure. This was because the Council’s responses under the corporate complaints procedure were basically the same as the response it would have sent under stage one of the statutory procedure.
17. The Council told us it had responded to Mrs X’s concerns under the corporate complaints procedure because Y had not consented to it sharing her information with Mrs X. It also said for it to carry out a stage two investigation under the statutory procedure, two external investigators would need to access her Mrs X’s daughter’s records without her consent. It did not agree to begin a stage two investigation under the statutory procedure.

Findings

18. 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. This independence is not available to complaints put through the corporate complaints procedure. Because of this, we expect people to complete the complaints procedure before we will consider whether there were any flaws in how the Council investigated their concerns. I have therefore not investigated Mrs X’s concerns about the Council’s involvement with her and Y.
19. The Council told us it had not used the statutory procedure because Y did not consent to it sharing her information with Mrs X. It also stated carrying out a stage two investigation would involve two external investigators accessing Y’s records without her consent. These are not a valid reason to not use the procedure.
20. The Council is under a duty to investigate eligible complaints under the statutory procedure. The duty was created to ensure councils investigate and identify any failings and shortcomings in its children’s services and to ensure any issues are resolved so they do not happen again. It is not for Y, or anyone else, to dictate whether the Council meets that duty based on whether they give consent to an investigation.
21. Mrs X is an eligible person to complain under the procedure in her own right so to comply with the law, the Council should have used the statutory procedure. Given Y did not consent to the Council sharing her information with Mrs X, the Council should have explained to Mrs X that after carrying out an appropriately thorough investigation with independent oversight, it would only be able to give her general answers to her concerns. If Mrs X was dissatisfied with the outcome of the investigation, she could complain to the Ombudsman after completing the procedure. We could then consider whether there was any fault in how the Council investigated Mrs X’s concerns, without disclosing Y’s personal information to her.
22. The Council was at fault for failing to use the statutory children’s complaints procedure to respond to Mrs X’s complaint. This caused her avoidable frustration and meant she went to undue time and trouble going through the corporate complaints procedure.

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Agreed action

23. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Mrs X for the frustration she experienced and time and trouble she went to because of its failure to use the statutory children’s complaints procedure.
2. Pay Mrs X £200 in recognition of that injustice.
3. Begin a stage two investigation into Mrs X’s concerns, under the statutory children’s complaints procedure. The Council will complete that investigation within a maximum of 65 working days and inform Mrs X of her right to request a stage three response.
4. Confirm to staff that the Council does not need a child’s consent to investigate a complaint from an eligible person under the children’s complaints procedure.
24. The Council will provide us with evidence it has complied with the above actions.

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Final decision

25. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman