Children’s rights legal digest – July 2020

With the Local Government and Social Care Ombudsman (LGO) resuming its work following temporary suspension during the pandemic, we dedicate this issue to the role of the LGO. We look at three decisions reached in response to complaints relating to children’s social care services, highlighting the role of the LGO as “the final point in the statutory complaints process”.

Failure to put eligible complaints through the Children Act complaints process amounts to injustice

This decision, reached in March 2020, concerned a young person who complained about support received from the London Borough of Newham (the council) while in care and as a care leaver. The case concerned two separate complaints – one in relation to financial allowances received while in care and another regarding the quality of care and unsuitable accommodation as part of leaving care support. The council upheld some of the complaint about allowances, made some payments and advised the young person to complain to the LGO if he was dissatisfied. The council never responded to the young person’s complaint about his post-16 care and accommodation. 

The legal basis for this complaint to the LGO is the statutory right of the young person to make a representation, including complaint, as set out in the Children Act 1989, and the corresponding duty of the council to investigate (as set out in the Children Act 1989 Representations Procedure (England) Regulations 2006 and statutory guidance – Getting the Best from Complaints 2006).

The LGO concluded that there was “no reason for the council not to have put [the young person’s] complaint through all stages of the Children Act statutory complaints procedures” and that by failing to do so, it caused injustice.

As a result of its investigation, the LGO made two recommendations: that the council consider the complaints starting at stage 2 of the statutory representation procedure and that it consider the possibility of investigating both complaints by the same investigating officer. The council accepted both recommendations. 

It is important to note that if the young person is dissatisfied with handling of his complaints once it’s been concluded, he has the right to submit a new complaint to the LGO.

Stage 3 statutory complaints process “not optional”, says LGO 

This decision, issued by the LGO in August 2019, concerned the placement by Liverpool City Council (the council) of two children (with Mr B and Mr C who lived in another authority) with a view to adoption and a number of complaints about the council’s failings.

Complaints made by Mr B and Mr C included delays to personal education plan (PEP) reviews, miscommunication by the council, delay in covering the cost of (continued) therapy agreed as part of the adoption plan and lack of visits from social workers (“the children’s social worker told the children he would see them every four to six weeks but only visited once in over seven months”).

In addition to these complaints, which the council accepted, Mr B and Mr C complained about the handling of the statutory complaints procedure. This included sending the stage 2 complaint investigation report three weeks late, not holding a discussion with Mr B and Mr C at the start of stage 2 (which was seen as a missed opportunity) and, crucially, declining to progress the complaint to stage 3.

The LGO pointed out that “the Council must follow the law, which does not make stage 3 optional or allow the Council to decide whether it thinks stage 3 would not be effective”; regulations 18 and 19 of the Children Act 1989 Representations Procedure (England) Regulations 2006 require the appointment of a panel to consider the matter further. In addition, the LGO cited statutory government guidance, Getting the Best from Complaints 2006, which says that “once a complaint has entered Stage 1, the local authority is obliged to ensure that the complaint proceeds to Stages 2 and 3 of this procedure, if that is the complainant’s wish” (paragraph 3.1.5).

The council agreed to implement the LGO’s recommendations aimed at remedying the injustice caused through its failings. These included apologising to Mr B and Mr C, making payments totalling £1850 to recognise the injustice caused to the children and Mr B and Mr C and confirming all outstanding adoption support action and when they would be completed.

LGO recommends actions to improve local children’s services

This decision, reached by the LGO in Nov 2019, concerns numerous complaints made by Ms X to the City of Bradford Metropolitan District Council (the council) relating to ongoing care of her daughter, Y, and Ms X’s ability to participate in care planning and reviews. Ms X complained that the council failed to make reasonable adjustments for her mental health needs, delayed the handling of her complaint and failed to implement previously agreed actions.

Some of the most significant findings of the LGO included the following:

The council responded to Ms X’s level 2 complaint approximately 22 weeks later than required by the Children Act 1989 and the Representations Procedure (England) Regulations 2006. In response, the council said this was because it struggled to find an investigating officer who was already familiar with the case and that it replaced one due to a potential conflict of interest. The LGO concluded that “the council should ensure it has enough resources in place to meet its statutory obligations”. 

The council said it would “not consider making reasonable adjustments for Ms X until she has a “qualified diagnosis” which sets out what reasonable adjustments would be appropriate”. The LGO confirmed that “there is no requirement in the Equality Act 2010 for a person to have a formal or “qualified” diagnosis of a health condition for the Council to make reasonable adjustments […] The council must consider if a person has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day to day activities [and] consider what adjustments may be necessary and should ask the person concerned what adjustments they require”.

The above findings (alongside others) constituted service failure and maladministration which caused injustice to Ms X. A comprehensive action plan was recommended by the LGO and agreed to by the council. This included support for Ms X from an adult social worker with a background in mental health who would support her to identify the reasonable adjustments she may need and refer her to relevant local services for further support. The council was given two weeks to respond in writing, setting out the reasonable adjustments it would be willing to make.

Importantly, the remedial action plan also included a range of actions to improve local children’s services, such as:

  • Complaint handling training for staff dealing with children’s services complaint;
  • “Producing an action plan setting out measures the council intends to take to ensure it meets statutory timescales for responding to complaints”;
  • Training on reasonable adjustments and the Equality Act 2010 for all “staff, social workers and managers who deal with the public”; and
  • “Producing internal guidance setting out the council’s approach to requests from parents to make audio recordings of meetings. This should include consideration of the council’s duties under the Equality Act 2010.”

Local Government and Social Care Ombudsman (LGO)

The LGO is a free and independent service. The legal authority of the LGO to investigate complaints against public bodies comes from the Local Government Act 1974. The Act gives the LGO the power to investigate: matters which relate to actions of public bodies, such as local authorities, the police and schools’ governing bodies; and complaints about adult social care providers.

The Act specifies the types of matters that can be investigated:
* Maladministration, i.e. poor performance of administrative duties
* Service failure, i.e. failings in how a service is provided or failure to provide a service by a public authority

The LGO can also provide advice and guidance to public bodies about “good administrative practice”. 

Before a complaint can be investigated by the LGO, the authority in question must be made aware of the issue and be given an opportunity to investigate and respond.

Complains must be made in writing and within 12 months from the decision of the public body. They can be made by the person who suffered injustice or their representative, such as an independent advocate.

A complaint to the LGO can be made by any member of the public who has:
* Suffered injustice; and
* This injustice has occurred as a result of the actions of a public body (such as maladministration).

The LGO clarifies in every decision it issues that it “cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. [It] must consider whether there was fault in the way the decision was reached” and whether “this has had an adverse impact (or injustice) on the person making the complaint”.

Where the LGO finds that injustice has been suffered as a result of maladministration or service failure, it can:
* Recommend that the authority remedy the injustice
* Recommend actions that he authority should take to prevent such injustice from occurring in the future
* Remedies can include an apology, financial payments, review or introduction of local policies, fulfilment of previously made commitments (e.g. agreed support plans), as well as fulfilment of any unmet statutory obligations.

All LGO decisions can be found here.