In this issue we take a closer look at a recent decision of the Local Government and Social Care Ombudsman (LGSCO) concerning a council’s handling of a statutory complaint made by B, a care leaver, about his local authority’s failure to support him. We use the LGSCO’s decision as an opportunity to highlight the rights and entitlements of care experienced children and young people under the Children Act 1989 representations procedure.
Local authority at fault for failing to progress care leaver’s complaint to Stage 3 of the statutory procedure
B is a care leaver (former relevant child). He has mental health difficulties. The LGSCO reports he began living independently from mid-2017 and between September and December 2017 he was in prison.
In mid-2018, B complained to the council about the inadequate support he had received as a care leaver. The council responded to the Stage 1 complaint but as B was unhappy with the response, he requested a Stage 2 investigation of his complaint. Severe delays by the council followed and it wasn’t until almost a year later that B’s statement of complaint was finally agreed.
Out of the 36 issues B raised in his complaint, the Investigating Officer appointed by the council upheld 29 and partially upheld two. Upheld complaint matters included failure by the council to “provide an advocate promptly or effectively” and failure “to ensure the advocate was present at key visits and meetings”. A range of failings connected to B’s personal advisor were also identified and included failure to visit him regularly, including at the time of his entering and leaving custody, failure to support him with his housing and to consult him on how his setting up home allowance should be used, and failure to produce and review a comprehensive pathway plan.
The council responded to the Investigating Officer’s report in February 2020 (two months after it was completed), accepting the findings and the recommendations.
On 11 June 2020 B asked for his complaint to be considered at Stage 3 of the statutory procedure because of the failure by the council to implement the actions agreed on completion of the Stage 2 investigation. The following day the council wrote a letter of apology and offered B financial compensation for its unsatisfactory services and for the time and trouble this had cost B (a total amount of £1,500). At the same time, the council refused to progress the complaint to Stage 3 because B missed the statutory timescales for requesting this (20 working days).
B then complained to the LGSCO that the council responded to his complaint with a delay, unreasonably refused to consider his complaint at Stage 3 and failed to implement the recommendations agreed following the Stage 2 investigation. These failings caused B significant distress and frustration during a very difficult time in his life.
The LGSCO found the council at fault based on:
- A significant delay by the council to complete the complaints process;
- The council should have progressed B’s complaint to Stage 3 because, despite the fact that B “took some time to respond” to the outcome of the Stage 2 investigation, the council had taken four months to send B a letter of apology and information about his financial compensation. The LGSCO concluded that the 20-working day limit on requesting a Stage 3 complaint review did not start until the council sent the letter.
The LGSCO did not, however, order the council to offer a higher amount of compensation than it had already offered.
You can read the LGSCO’s full decision here.
To find out more about the role and remit of the Local Government and Social Care Ombudsman, read the bottom part of the July 2020 issue of our children’s rights legal digest. You can also learn more on the LGSCO website.
Children and young people’s rights within the statutory (Children Act 1989) representations (including complaints) procedure
Children and young people (and adults) have a statutory right to make representations, including complaints, about local authority care and protection services. This right is set out in Sections 24(D) and 26(3) of the Children Act 1989.
Section 26A of the Children Act 1989 places a duty on local authorities to make arrangements for the provision of assistance to children and young people who make or plan to make representations under Section 26 or Section 24D. This means that children and young people wishing to make a complaint about services provided under the Children Act 1989 have a statutory right to access advocacy.
The detailed process for considering representations, including complaints, is set out in secondary legislation (Regulations) and supplemented by statutory guidance.
There are specific rights and entitlements set out in Regulations that advocates should keep in mind when supporting children and young people in the statutory representations process:
§ As soon as a local authority receives a representation, it must provide the complainant with details of its procedure for considering representations and information about advocacy services. It must also offer the complainant help in getting an advocate (Regulation 11).
§ If the complaint is not resolved at Stage 1 (local resolution), the child or young person (or their advocate) can request consideration at Stage 2 (Regulation 15(2)). The local authority cannot refuse this request. There is no statutory time limit on this, but local procedure may specify recommended timescales.
§ If the child or young person (or their advocate) doesn’t want their complaint to be considered at Stage 1, they can agree with the local authority to start with a Stage 2 (investigation) (Regulation 14(1)). This could be, for instance, because the child or their advocate believes that an independent person, not required to participate in Stage 1, is necessary.
§ If the child or young person is not satisfied with the outcome of the Stage 2 investigation, they have the right to request consideration of their complaint at Stage 3 (review panel). This request must be made within 20 working days of the date of the local authority’s response to stage 2 (Regulation 18) and the request cannot be denied, provided that Stage 2 has been completed.
Statutory guidance states clearly 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”. (Para 3.1.5)
Advocates should also remember that:
§ Statutory guidance states that “if the complaint is about a proposed change to a care plan, a placement or a service, the decision may need to be deferred (frozen) until the complaint is considered” and that generally there should be a presumption in favour of freezing. (Page 28)
§ Local authorities have the power to consider representations, including complaints, made after the lapse of the one-year timeframe if it was not possible to make it earlier (e.g. because of the child’s or young person’s vulnerability) or if, despite the time that has passed since the matter arose, it can still be considered effectively and fairly (Regulation 9(2)). Statutory guidance advises that decisions need to be made on a case-by-case basis and there should be a presumption in favour of accepting a late complaint unless there is good reason not to.