Summary: Mr W complains about a number of issues in relation to the Council’s engagement with him and his child. This includes matters such as child contact arrangements and personal care hours which were subject to legal proceedings. Central to Mr W’s complaint however is the Council’s alleged refusal to consider these complaints further once legal proceedings concluded. He is also dissatisfied about matters in relation to medication procedures and how a complaint for social housing was internally dealt with by the Council. We have discontinued our investigation because we do not have jurisdiction to investigate a number of the complaints. We also cannot add anything further to what the Council has undertaken to do.

The complaint

1. The complainant, who I refer to as Mr W, is making a complaint in relation to the Council’s Children’s’ Services involvement with his family. There are six main areas of Mr W’s complaint which are summarised as follows:
1. Dissatisfaction around the actions of the involved Council Social Worker relating to a Court Order and his belief that he had been pressurised to return his son to his mother in contravention of a Child Arrangement Order. Mr W is also unhappy about the inclusion of information contained in a report which was ordered by the Family Court and allegedly demonstrated bias against him.
2. The Council acting unlawfully in respect of an alleged fabrication of a police investigation by the involved Social Worker and reported interference with a Child Contact Order. Mr W also complains in relation to the suspension of contact with his son and the implications of this on his wellbeing.
3. The Council failed to provide the required number of personal assistant (PA) hours needed support his son since June 2020. Mr W brought private legal proceedings which resulted in a legal settlement between him and the Council.
4. The Council’s decision to not consider (a), (b) and (c) at Stage 3 of its complaints policy and procedure. Mr W wants the Council to investigate these complaint outcomes in accordance with the Children Act 1989 Representations Procedure (England) Regulations 2006.
5. Alleged failures by the Council with respect to the care and support arrangements provided to Mr W’s son at a children’s home for those with disabilities and complex care needs who require short-term breaks. This includes complaints with respect to mediation arrangements and procedures.
6. The Council failed to properly consider his complaint for social housing. Mr W also well alleges a conflict of interest with respect of how this was dealt with.
2. In summary, Mr W says he is being denied the opportunity for his concerns to be addressed and for lessons to be learned by the Council. As a desired outcome, he wants the Council to consider his complaints further and to be held accountable for the alleged failings.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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’. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).
7. Before any complaint can be brought to the Ombudsman, we must be satisfied that the Council has had a reasonable opportunity to consider the issues raised and investigate. (Local Government Act 1974, section 26(5), section 34(B)6)).

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How I considered this complaint

8. I have read Mr W’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation, guidance and policy. I invited both Mr W and the Council to comment on a draft of my decision before a final decision was made.

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What I found

Background and legislative framework

Statutory complaints procedure

9. The Children Act 1989 established the requirement for councils to have a formal representations procedure to deal with complaints about local authority functions under Part 3 of the Act, and some sections of Parts 4 and 5. Later acts of legislation have added to the scope of the procedure by widening the areas which are included and the people who can use the procedure.
10. The Children Act 1989 Representations Procedure (England) Regulations 2006 (the Regulations). The Regulations:
1. specify which functions under the various Acts are subject to the procedure;
2. state who can make a complaint;
3. set out the three-stage process: local resolution, investigation and review panel;
4. specify the involvement of an independent investigator at the investigation stage with oversight by an independent person;
5. establish the principle of the welfare of the child being paramount in any consideration of a complaint;
6. set out the circumstances in which a complaint should not be considered; and
7. specify the timescales for responses at the various stages.
11. The Regulations should be read alongside the Children Act 1989 and other primary legislation to establish if the matters complained about are subject to the regulations or excluded.

My assessment

Matters subject to legal proceedings

12. By law, I cannot investigate any matter which has been subject to legal proceedings. The complaint outcomes identified at Paragraph 1(a) to (c) have each been subject to legal proceedings in court. In the event Mr W is unhappy with any court ordered contact arrangements, reports or instructions, it would be reasonable for him to raise the issues and alleged failures with the court. The restrictions I outline at Paragraphs 5 and 6 apply and we have no legal jurisdiction to investigate these matters.

Statutory complaints procedure

13. Once the legal proceedings in respect of the complaint outcomes identified at Paragraph 1(a) to (c) had concluded, Mr W was of the understanding the Council would still investigate these concerns. However, he alleges the Council has refused to consider these matters as part of the statutory complaints procedure (see Paragraphs 9 to 11) in order to learn from its alleged failings. Importantly, it is not a good use of our recourses to investigate complaints about complaint handling where we cannot deal with the substantive issue. We cannot investigate the substantive issues for the reasons I have provided at Paragraph 12.
14. However, I have spoken to the Council in respect of this issue. It has provided me an assurance that it will consider the complaint outcomes I outline at Paragraph 1(a) to (b) under the statutory complaints process. The Council said it will not investigate the complaint outcome I outline at Paragraph 1(c) because this matter resulted in a legally binding settlement which was awarded to Mr W and which he agreed to. It says therefore that the matter is closed and should not be reopened. I am inclined to agree with the Council. That this matter has be concluded consensually by an agreed legal settlement makes it inappropriate to be considered under the Council’s complaints process. The matter was closed in consideration for payment of an unspecific sum to Mr W. I will not therefore investigate the complaint outcome identified at Paragraph 1(d) because I cannot add anything further to the Council’s assurances and decisions in this respect.

Respite care and medication failings

15. Part of Mr W’s general complaint to the Ombudsman includes an ongoing complaint he has with the Council which has not yet exhausted its complaints policy and procedure. This concerns medication provided to Mr W’s son who was staying at a short-break facility. A complaint response was sent to Mr W in September 2022. Mr W has subsequently issued a Pre-Action Protocol letter in respect of the Council’s alleged failings in this area with new information relating to a proposed outcome. The Council has said it would like the opportunity to investigate Mr W’s concerns further and complete its complaints policy and procedure. However, if Mr W intends at this stage to take court action in respect of the issues, the Council says its complaints policy is not the appropriate process to resolve these. I agree with that position.
16. The law says that before any complaint can be brought to the Ombudsman, the Council must first have the opportunity to consider the issues raised and investigate. This has not happened, we do not have a full understanding of this issues as this stage, and so these issues are premature for the Ombudsman to investigate. The restriction I outline at Paragraph 7 applies and I will not therefore investigate. When Mr W receives a final complaint response from the Council in respect of these issues, he may bring his complaint to the Ombudsman.

Housing complaint and conflict of interest

17. Separately, Mr W has informed me about a conflict of interest with respect to how his complaint relating to social housing was dealt with by the Council. I found Mr W has already brought the housing element of his complaint to the Ombudsman. In this case, the Ombudsman declined to investigate because it was unlikely we would find fault by the Council. Further, the findings of that case were that Mr W had not suffered an injustice in relation to the substantive issues and he could reasonably exercise a right of review if he was unhappy. On that basis, I do not propose to investigate how this complaint was internally dealt with by the Council. That being said, the Council has written to Mr W with respect to the alleged conflict of interest. I am satisfied with the response given by the Council.

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Final decision

18. I have discontinued my investigation because we do not have legal jurisdiction to investigate a number of the complaints raised by Mr W. We also cannot add anything further to what the Council has agreed to do.

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Investigator's decision on behalf of the Ombudsman