Summary: The complainant (Miss X) said the Children’s Trust (the Trust) acting for the Council failed to review contact arrangements with her son (Y) for whom a Care Order is in place. We found fault with the Council for refusing to consider Miss X’s complaint through its children’s statutory complaint procedure. This caused Miss X injustice. The Council agreed to apologise, consider Miss X’s complaint under the children’s statutory complaint procedure and make a payment. The Council also agreed to review all cases for which it applied the Unreasonable and Unreasonably Persistent Complainants and Unacceptable Behaviours policy to ensure the correct decision-making process takes place for any new complaints.

The complaint

1. Miss X complains about the Children Trust’s refusal to work with her to increase her contact with Y for whom a Care Order is in place. She says the Trust discriminated against her because of her mental health diagnosis.
2. Miss X says the Trust’s failings affected her mental health.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

8. I reviewed all the documents sent by Miss X.
9. I reviewed the Council’s children’s statutory complaint procedure, the Council’s Unreasonable and Unreasonably Persistent Complainants and Unacceptable Behaviours policy (the Policy) and our Guide for practitioners ‘Children’s statutory complaints process’ revised in February 2022.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

11. The guidance ‘Getting the best from complaints’ Social Care Complaints and Representations for Children, Young People and Others (Guidance) is based on the Children Act 1989 Representations Procedure (England) Regulations 2006. Only in exceptional circumstances councils can justify a variation from this document.

The Guidance specifies:

• which complaints should be considered under children’s statutory complaints procedure;
• who can complain;
• process and timescales for considering complaints.
1. Complaints about some councils’ functions performed under Part 4 of the Children Act 1989 should be considered under the statutory children’s complaints legislation. These include:
• The effect of the care order and the council’s actions and decisions where a care order is made;
• Control of parental contact with children in care.
2. The right to have a complaint about children looked after by the local authority considered under the statutory children’s complaints procedure extends on their parents and any other person who has parental responsibility for them.
3. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services:
• 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.

What happened

Background

15. Y is a looked after child living with his father. Miss X has had supervised contact with Y.
16. The Trust performs children services’ functions on behalf of the Council.
17. In September 2021 the Council applied the Policy for any contacts with Miss X.

Miss X’s communication with the Trust from March 2022

18. At the end of March 2022 Miss X stated she wanted to complain about the Council’s failure to communicate with her about Y, which had a negative impact on him. At the same time Miss X withdrew her consent for the National Health Service (NHS) to share her medical data with the Trust.
19. In the fourth week of June the Trust sent Miss X a letter, explaining the persistent nature of Miss X’s communication with the Trust affected its ability to provide services to other families and children. It provided a plan of contact specifying some rules:
• Once the Trust responded to Miss X’s query it would not communicate further about the same issues;
• The social worker or a team manager would contact Miss X once a week with the updates on Y’s care;
• Miss X should send any complaints to the specific email address;
• Miss X should contact her social worker rather than the managers about any urgent concerns or issues.
20. At the end of August Miss X told the Trust she was not happy with the continuing supervision of her contact with Y despite her social worker’s assurances this would end. She said the Council’s failure to reassess her contact with Y was unacceptable in view of the lack of any concerns for over two years.
21. In her response, the team manager confirmed there had been some progress in Miss X’s contact arrangements with Y. She assured Miss X the Trust was exploring whether her contact with Y could be extended even further.
22. In mid-November Miss X again communicated with the Trust’s staff about her contact arrangements with Y. She also asked the Trust to change her social worker.
23. In the third week of December the Trust responded to the Member of Parliament’s enquiry about Miss X’s supervised contact with her son. An investigating officer acting for the Trust explained reassessing Miss X’s contact with Y would happen in January 2023. The Trust communicated this message to Miss X a few days later.
24. In the beginning of March the Trust and Miss X signed a Working Agreement about contact and communication rules.
25. During our telephone conversation Miss X told me since January 2023 she had had a new social worker and from February her contact with Y had increased, leading to the imminent discontinuation of the supervised contact and introducing Y’s overnight stay with her. She clarified her complaint referred to her previous social worker’s and team manager’s failings to communicate with her and reassess her contact arrangements with Y up until January 2023.
26. In response to our enquiries the Trust said after applying the Policy it tried to engage with Miss X through various meetings, discussions and action plans. The evidence, it said, showed the Trust’s efforts to provide Miss X and Y with the right support and contradicted Miss X’s discrimination claims.

Analysis

27. In March 2022 Miss X complained about the Trust’s lack of communication about her contact with Y. In the later correspondence Miss Y expressed her dissatisfaction with the continuing supervision during her contact with Y, and no progress despite improvement in her mental health and the absence of any concerns about the contact.
28. The Policy applied by the Council for Miss X in September 2021 states: “New complaints from people who have come under this policy will be treated on their merits and decisions will need to be taken on whether any restrictions which have been applied before are still appropriate and necessary.”
29. The Council failed to respond to Miss X’s complaint of March 2022. There is no evidence it made a decision for this complaint on whether any restrictions on contact with Miss X were still appropriate and necessary.
30. As explained under paragraph twelve of this decision the control of parental contact with children in care should be considered by the Council under the children’s statutory complaint procedure.
31. The Council’s failing to look at Miss X’s concerns under the children’s statutory complaint procedure is fault, as there was no consideration of the possible grounds for not investigating. This fault caused Miss X injustice as she was not given the opportunity to have her concerns considered. She experienced uncertainty and distress.
32. There is no evidence that in its treatment of Miss X the Trust and the Council did not properly take account of her rights because of her mental health diagnosis. Although I found fault with the Council for not considering Miss X’s complaint raised in March 2022, there is nothing to suggest this happened because of her mental health. We have evidence that despite some difficulties the Trust and the Council continued communicating with Miss X, organised meetings and set up plans of action which suggests she was treated in the same way as other service users.

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Agreed action

33. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following:
• send a written apology to Miss X;
• consider Miss X’s complaint at stage one of its children’s statutory complaint procedure and advise her on her right to request stage two;
• Pay Miss X £350 for the injustice caused by the delay in considering her complaint.

The Council will provide us with the evidence the above has happened.

34. We also recommend the Council within six months of my final decision review all the cases for which within the last two years it has applied the Unreasonable and Unreasonably Persistent Complainants and Unacceptable Behaviours policy to ensure any complaints raised by the service users are either addressed through the appropriate complaints process or decisions are made whether any restrictions which have been applied before are still appropriate and necessary. The Council will provide us with the evidence of completing this action.

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Final decision

35. I found fault with the Council’s refusal to investigate Miss X’s complaint. This fault caused Miss X injustice. The Council has accepted my recommendations for remedies, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman