Local authority applied statutory guidance selectively and wrongly refused to accept care leaver’s complaint because of passage of time
Background
This decision concerns a young adult referred to by the Ombudsman as C*. His complaint was made by a representative, Ms B, who is a legal adviser.
[*In the Ombudsman’s decision, C is referred to as Mr C. In our summaries of the Local Government and Social Care Ombudsman’s decisions we refer to individuals who are children, young people or young adults by initials only. This is to emphasise their young age and the resulting position of vulnerability and stark power imbalance in their interactions with public services. We also believe the use of initials is impersonal and have, in the past, asked the Ombudsman’s office to use pseudonyms instead.]
When C was 15 years-old, he lived with his mother. Following a breakdown in their relationship, C left his mother’s home and lived for a period of time in foster care, later returning to his mother and then moving in with his grandmother. In March 2020, when C was 17, he had to leave his grandmother’s home and he was referred to “foyer type homeless accommodation” by his local authority. The council also provided C with a social worker. Later, C moved into a hostel and after that into privately rented accommodation.
Despite having an allocated social worker who supported C as he moved between the foyer, the hostel and then private accommodation, the council did not provide C with accommodation under section 20 of the Children Act 1989 or inform him of his right to be accommodated. As a result, C had to leave education and find paid work to cover the costs of his accommodation. Additionally, the time C spent in the hostel had a negative impact on his mental health.
On behalf of C, Ms B complained to the council and requested an apology, immediate care leaver support for C as a ‘former relevant child’, pathway planning support addressing C’s education and training goals and, finally, financial redress for the council’s failures.
Following the complaint, the local authority assessed C’s needs and agreed to treat him as a ‘former relevant child’. C was assigned a personal adviser, and the council was to support C in applying for council accommodation.
At the same time, the council declined to investigate C’s complaint about not providing him with accommodation under section 20 of the Children Act 1989 saying statutory guidance prevented it from accepting complaints made late. In its refusal, the council cited an excerpt from the Local Government Act 1974 which defines late complaints as those made more than 12 months after the complainant became aware of the issue/s being complained about. The council also suggested C should speak to Ms B as his legal adviser to get advice about “compensation and personal injury”.
On behalf of C, Ms B then made a complaint to the Local Government and Social Care Ombudsman.
The complaint
C’s complaint to the Ombudsman concerned two key issues:
- That the council failed to provide him with accommodation under section 20 of the Children Act 1989 when he was a homeless child; and
- That the council refused to consider his complaint about this failure under the Children Act 1989 procedure citing passage of time.
The legal framework and relevant guidance
‘Late complaints’: complaints made later than 12 months after the events being complained about occurred
Secondary legislation defines the timescales for making representations under the Children Act 1989 procedure and gives local authorities a discretionary power to disapply them:
1) A complainant must make his representations about a matter no later than one year after the grounds to make the representations arose.
(2) But a local authority may consider any representations which have been made outside the time limit specified in paragraph (1) if, having regard to all the circumstances, they conclude that—
(a) it would not be reasonable to expect the complainant to have made the representations within the time limit; and
(b) notwithstanding the time that has passed it is still possible to consider the representations effectively and fairly.
Regulation 9 of The Children Act 1989 Representations Procedure (England) Regulations 2006.
Statutory guidance, Getting the best from complaints, which local authorities must follow unless there are exceptional circumstances (see para 1.3.1), requires local authorities to consider complaints made after the passage of 12 months on a case-by-case basis and states clearly that there should generally be a presumption in favour of accepting such complaints unless there are good reason against it (para 3.3.1).
The guidance further states:
“The time limit can be extended at the local authority’s discretion if it is still possible to consider the representations effectively and efficiently. Local authorities may also wish to consider such complaints if it would be unreasonable to expect the complainant to have made the complaint earlier. For example, where the child was not able to make the complaint or did not feel confident in bringing it forward in the year time limit”. (Para 3.3.2; emphasis added)
“Though not exclusive, possible grounds for accepting a complaint made after one year are:
• genuine issues of vulnerability;
• the local authority believes that there is still benefit to the complainant in proceeding;
• there is likely to be sufficient access to information or individuals involved at the time, to enable an effective and fair investigation to be carried out; and
• action should be taken in light of human rights-based legislation." (Para 3.3.3; emphasis added)
Making an effective apology
(Section 2.2 of Local Government and Social Care Ombudsman’s guidance on remedies)
While the Ombudsman’s guidance is not statutory, it makes clear that local authorities and other organisations investigated by the Ombudsman are expected to have due regard to the following principles when making an apology:
Timely: The apology should be prompt and reflective of what went wrong, any distress and delay caused to the complainant, and for putting the complainant in a situation where they had to complain to the Ombudsman to achieve an appropriate remedy.
Authoritative: The apology should come from “someone sufficiently senior and accountable for taking any corrective action” to show “the organisation has taken the findings seriously, recognises the impact on the complainant and is committed to learn and put things right”. In deciding the format of the apology, reasonable adjustments should be considered.
Specific: The apology should be “aimed directly at the complainant and their poor experience of the organisation’s services”. References to other people’s similar experiences or service pressures may have the result of diminishing the apology and should be avoided.
Plain language: The apology should be free of organisational jargon and expressed in plain language. The organisation making the apology should consider both reasonable adjustments and the individual complainant’s preferences when apologising.
Take ownership: The apologies should “own” what went wrong and avoid passive language or language that that is “ambiguous or dismissive about what actually happened”. The apology should be “clear, unequivocal, active, and accountable”.
The Ombudsman’s guidance further states that “standardised [apologies] can diminish impact because they appear to have come from a corporate template, rather than sincere personal apology”. Some guiding principles underpinning effective apologies are: (1) communicate regret, (2) take responsibility, (3) provide an explanation/reason, and (4) offer a remedy.
Click here to read the guidance on making an effective apology in full.
For information about the statutory duty to provide accommodation under section 20 of the Children Act 1989 to children aged 16 and 17, please read the following Article 39 resources:
- Law map: Supporting homeless children aged 16 and 17
- ‘The Southwark judgment’ and the rights of homeless 16 and 17-year-olds
- Local Government Ombudsman recommends review of homelessness applications from 16 and 17-year-olds following failure to accommodate a child under Section 20 Children Act 1989
The Ombudsman’s analysis and findings
The Ombudsman found three areas of concern connected to the council’s refusal to investigate C’s complaint.
1. The council wrongly cited the Local Government Act 1974 as preventing it from considering C’s complaint.
The Local Government Act 1974 concerns the Ombudsman’s powers to investigate complaints and does not place any limits on councils’ ability or power to investigate complaints made to them.
While the relevant guidance – Getting the best from complaints – states that local authorities “do not need to consider complaints made more than one year after the grounds to make the representation arose”, it makes very clear that this is a discretionary decision. It also lists relevant factors which should be considered when making decisions.
2. The council considered the relevant statutory guidance – Getting the best from complaints – selectively, meaning key considerations relevant to C’s circumstances were not part of decision-making.
The Ombudsman found that the council failed to consider statutory guidance in full and, specifically, failed to take into account the need to make decisions on a case-by-case basis, that there should generally be a presumption in favour of accepting ‘late’ complaints, the discretionary power to accept ‘late complaints’, and the possible grounds for accepting ‘late complaints’, such as “genuine issues of vulnerability”.
The Ombudsman concluded that the elements of statutory guidance which could have (in theory) explained the refusal to accept C’s complaint did not apply because:
– The events being complained about were relatively recent (“do not go back many years”) and the local authority should still have the documentation necessary to investigate;
– C was a child when the events being complained about occurred and he was not made aware of his right to be accommodated under section 20 of the Children Act 1989, meaning he could not have complained sooner;
– The answer to the question of whether C was a ‘former relevant child’ was ‘current’ and still applied at the time of the complaint being made to the local authority (meaning this element was not late);
– The council would have benefited from investigating C’s complaint given it concerned a failure to inform a child about their rights under the Children Act 1989; and
– C’s age, combined with the impact of the council’s failings on his mental health, meant that ‘vulnerability’ was a factor and should have been considered by the council when it decided to refuse to accept his complaint.
The Ombudsman concluded that the council did not weigh any of these considerations in its decision not to investigate C’s complaint.
3. The council was wrong in suggesting C pursues a personal injury rather than considering his request for “financial redress”.
The Ombudsman noted that while it may be relevant for a local authority to consider if redress might be sought through the courts, statutory guidance is clear about the power to offer a financial remedy:
“In its decision the only factor the council cited for why it considered C should go down the path of a personal injury claim was to seek ‘compensation’. But ‘financial redress’ (which is what C asked for – not compensation) is something the council can consider as part of the statutory complaint procedure. Section 6.4 of Getting the best from complaints explains this. It says that where a complaint is upheld, the council should consider making a financial remedy and gives multiple examples where this might be appropriate.” (Paragraph 20; emphasis added)
The Ombudsman also said:
“I consider this combination of concerns justifies a finding of fault. Because combined, they do not show a proper consideration of the merits of investigating C’s complaint, despite the passage of time. This fault has caused C an injustice. He has been denied access to a complaint procedure, which potentially offers an opportunity for the council to resolve a complaint. He has experienced unnecessary time and trouble in being required to contact this office to escalate his complaint”.
Recommended remedies
The Ombudsman asked the council to progress C’s complaint through the statutory procedure while noting the “strict timescales for response at each stage [of the procedure]” and remining the council that “if the investigation unavoidably exceeds these deadlines, the council should seek C’s agreement to this” (paragraph 26).
Individual remedies
In addition, in line with the Ombudsman’s recommendations, the council agreed to, within 20 working days of the decision:
- Apologise to C in writing following the Ombudsman’s guidance on making an effective apology; and
- Make a symbolic payment of £150 to C for the unnecessary time and trouble.
Service improvements
The Ombudsman asked the local authority to demonstrate learning from C’s complaint by briefing relevant complaints officers, within 20 working days of the decision, about:
- The need to take account of all relevant statutory guidance when deciding whether to accept a ‘late complaint’, including consideration of the specific facts of the case, the complainant’s age or their potential vulnerability when the events complained about took place;
- The need to take account of relevant statutory guidance on ‘financial redress’ when considering a complainant’s request for a financial remedy.
You can read the full decision (dated 16 October 2023) here: London Borough of Lambeth (23 005 162)
