The Ombudsman's final decision
Summary: Mr X complained about the Council’s failure to provide recommended or adequate support for him from when he was a young child. We found the Council at fault for not properly considering guidance or his individual circumstances when it refused to consider his complaint under the statutory children’s complaints procedure. The Council has agreed to our recommendations to remedy the injustice caused.
The complaint
Mr X complains the Council failed to provide support at multiple opportunities when he was a child and did not carry out specific recommendations which assessments said he needed from a young age. The Council said it would not investigate his historical concerns because of the time that has passed since. Mr X says the lack of help contributed to decisions he made and the uncertainty that had he been given the correct support by social services, his life could have turned out differently.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I discussed the complaint with Mr X and considered his views.
I considered the Council’s complaint response and its website.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and administrative background Statutory children’s complaints procedure 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.
The first stage of the procedure is local resolution. Councils have up to 20 working days to respond. 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 investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 13 weeks to complete stage two of the process from the date of request.
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. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
The Ombudsman has published ‘Guide for practitioners ’ (updated November 2023) about our approach to complaints about the statutory children’s complaints process.
What happened Mr X is under the age of 18. Mr X’s representative made a formal complaint on his behalf to the Council. This included concerns the Council failed to support him adequately from a young age and when he was a Looked After Child in care. He said this led him to the placement he was in at the time, and he had since reflected on his early experiences and now had support to make a complaint.
The Council responded and said: “it would not be possible to investigate historical matters such as yours due to the limited amount of information the Council would hold about you and your concerns given the time elapsed”.
“we would expect anyone wishing to make a complaint to raise their concerns within 12 months of any incident”.
“however due to the nature of your complaint and in order to provide you further clarity I think it would be helpful to you [once your placement has ended] to discuss your concerns about your past with your allocated social worker. The social worker will be able to access your records and will hopefully be able to answer some of the queries you have raised”.
Mr X’s representative later complained to us.
The Council’s website page about ‘Children’s social care complaints and representations’ provides information on how to make a children’s services complaint to the Council. It also states, “Please note: you should make your complaint as soon as possible but no longer than twelve months”.
Analysis The Council’s handling of Mr X’s complaint Government set up the statutory children’s complaints procedure to provide children, young people and those involved in their welfare access to an independent and thorough response to their concerns. Because of this, we expect those who complain to us to complete this procedure before we will consider investigating the matters of complaint. I am therefore not proposing to investigate Mr X’s substantive concerns.
However, I can take a view on how the Council has dealt with Mr X’s complaint. It is not our role to substitute our discretion for that of the Council, which must decide whether to investigate such complaints. But we would expect the Council to fairly consider its discretion and properly explain its reasons in line with relevant guidance. In this case, I am not satisfied the Council demonstrated it took into account the statutory ‘Getting the Best from Complaints’ guidance at Paragraph 8 to make a sound and robust decision.
This guidance explains a council ‘need not’ accept a complaint made more than 12 months after the events complained about. But it explains this is at its discretion. The guidance says it should decide this on a case-by-case basis, but there should be a presumption in favour of accepting a complaint unless there is a good reason not to. This is if it is possible to consider the representations effectively and efficiently.
The guidance also says councils may consider if it would be unreasonable to expect the complainant to have made the complaint earlier. It says grounds for accepting a complaint made after one year might include: genuine issues of vulnerability; where the local authority believes there is benefit in the complaint proceeding; or where there is likely to be sufficient access to information and individuals involved at the time.
With this in mind, the Council appears to use the main issue of time for its decision not to investigate without demonstrating fair consideration or weighing of other relevant factors as the guidance states. It did not take into account Mr X’s age or potential vulnerability then and even now: he was a young child at the time of the events complained about and it did not give consideration that it would be unreasonable to expect him to complain at that time or have access to the complaints process. It did not explore his current circumstances on why he had chosen or felt able to make the complaint to the Council now.
I also note the Council did make reference to the practicality of an investigation. It said it would hold limited information about Mr X but then offered that his social worker would be able to access his records to go through them with him. This appears contradictory to me. Firstly, I consider it very likely relevant records would exist as there are rules around the retention of these types of records. Secondly, this leads me to question why the Council has not formally dealt with it as a complaint accordingly, as it would likely need to do a similar exercise at the first stage of the statutory children’s complaints procedure.
Taking into account the above points, on balance, in my view the Council has not properly considered or sufficiently applied the statutory guidance on accepting late complaints when it decided not to investigate. This is fault causing Mr X injustice by denying him the opportunity to have his complaint investigated under the statutory children’s complaint procedure.
Information on the Council’s website I am also concerned with the Council’s wording on its website about complaints having to be made within 12 months of the events complained of. This is misleading and not an accurate reflection of statutory guidance. As already referenced throughout above, councils have discretion to extend time limits for complaints to be made. The information on the website could prevent people from making late complaints when they are in their rights to do so for fair consideration. This is fault and could cause injustice to others. I have recommended action to address this fault.
Agreed action
To remedy the injustice set out above, the Council has agreed to carry out the following actions: Within one month of the final decision: Apologise to Mr X in writing for the injustice caused by declining to investigate his late complaint without demonstrating proper consideration of statutory guidance; and Start an investigation into Mr X’s complaint under the statutory children’s complaint procedure, without delay, and ensure it provides appropriate information about his rights under the process.
Within two months of the final decision: Amend its website and any internal policy documents about the Council’s discretion to accept complaints made over 12 months ago. This should accurately reflect the ‘Getting the Best from Complaints’ guidance about the relevant considerations councils should apply when dealing with late complaints; and Send written notification to all staff involved in the children's statutory complaints procedure, to include the reasons for correcting information about late complaints on its website and reminders to act in line with this.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I found fault with the Council which caused injustice to Mr X. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman