Complaints and Representations

SCOPE OF THIS CHAPTER

This procedure covers complaints and representations received in respect of services to children under the Children Act 1989 Representations Procedure (England) Regulations 2006.

This procedure does not apply to complaints of Significant Harm, (which must be dealt with under the Multi-Agency Safeguarding Children Procedures); assessments of potential foster carers and adopters; foster carer registrations and Section 7 and 37 Reports. There are other processes for dealing with these although each complaint should be considered on its own merit. See Section 2, What may be Complained About?

See also Children's Services Complaints.

RELATED CHAPTER

Advocacy and Independent Visitors Procedure

Complaints about Children’s Services (Derbyshire.gov.uk)

RELEVANT GUIDANCE

Effective Complaint Handling for Local Authorities (Local Government & Social Care Ombudsman)

Children's Statutory Complaint Process: Guide for Practitioners (Local Government & Social Care Ombudsman)

Getting the Best from Complaints

AMENDMENT

This chapter was amended in December 2021 to reflect the Children’s Statutory Complaint Process: Guide for Practitioners (Local Government & Social Care Ombudsman, 2021). (See Relevant Guidance (above)).

1. Who may make a Complaint?

A representation or complaint may be made by:

  1. The child;
  2. A parent or person with parental responsibility;
  3. A local authority foster carer;
  4. Any other person the authority considers has sufficient interest in a child's welfare to warrant a complaint or representation being considered by them;
  5. A care leaver;
  6. Special guardians;
  7. A child in respect of whom a special guardianship order is in force;
  8. Any person who has applied for an assessment for special guardianship support;
  9. Any child who may be adopted, their parents and guardians;
  10. Any person wishing to adopt a child;
  11. Any person to whom arrangements for the provision of adoption support services extend;
  12. Adopted persons, their adoptive parents, birth parents and former guardians.

Where a complaint is made on behalf of a child, the complaints manager should confirm where possible that the child is happy for this to happen and that the complaint submitted reflects their views. However, as long as the complainant is on the list of ‘who can make a complaint’, these individuals can make a complaint in their own right and do not need the consent of the child, (but note they do not have the right to access the child’s personal data).

2. What may be Complained About?

A complaint may arise as a result of many things relating to statutory children's social care functions such as:

  • An unwelcome or disputed decision;
  • Concern about the quality or appropriateness of a service;
  • Delay in decision making or provision of services;
  • Delivery or non-delivery of services including complaints procedures;
  • Quantity, frequency, change or cost of a service;
  • Attitude or behaviour of staff;
  • Application of eligibility and assessment criteria;
  • The impact on a child of the application of a council policy;
  • Assessment, care management and review.

This, and the list that follows, are indicative only and should not be used as a means of restricting matters about which a complaint can be made and responded to. Where there is any uncertainty about the validity of a complaint the complaints manager should seek legal advice as necessary.

Specifically, a complaint may be about the following:

  • The decision by the local authority to initiate care proceedings;
  • The effect of a care order and the council's actions and decisions where a care order is made;
  • Issues relating to contact between parents and children subject to care orders;
  • How supervisors perform their duties where a supervision order is in force;
  • Actions of the council regarding applications for and duties in relation to child assessment orders;
  • Matters relating to applications for emergency protection orders and decisions relating to the return of children who have been removed;
  • The quality or accuracy of social work information or a social work report provided to a court;
  • The conduct of a social worker in court.

In relation to adoption, a complaint may be about the following:

  • The provision of adoption support services insofar as these enable adoptive children to discuss matters relating to adoption;
  • Assessments and related decisions for adoption support services;
  • Placing children for adoption, including parental responsibility and contact issues (see Placement for Adoption Procedure);
  • Removal of children who are or may be placed by adoption agencies;
  • Removal of children in non-agency cases;
  • The carrying out by the council of its duties on receipt of a notice of intention to adopt;
  • The carrying out by the council of its duties in respect of::
    • Considering adoption for a child;
    • A proposed placement of a child with prospective adopters;
    • Adoptive placements and reviews;
    • Adoption case records;
    • Contact;
    • Parental responsibility prior to adoption abroad.

In relation to a special guardianship order, a complaint may be about the following:

  • Financial support for special guardians;
  • Support groups for children to enable them to discuss matters relating to special guardianship;
  • Assistance in relation to contact with parents for children;
  • Therapeutic services for children;
  • Assistance to ensure the continuation of the relationship between the child and their special guardian or prospective special guardian.

The complaints manager has discretion in deciding whether to consider complaints where to do so would prejudice any of the following concurrent investigations:

  • Court proceedings;
  • Tribunals;
  • Disciplinary proceedings;
  • Criminal proceedings;
  • Matters that would be better considered under the council's corporate complaints procedure;
  • Where a complainant has indicated that they intend to take legal proceedings in relation to the substance of the complaint.

Before the Complaints Manager decides not to consider, or further consider, complaints subject to these concurrent investigations, they should consider if it is possible to investigate some or all of the complaint without prejudicing any other investigation. They must write to the complainant explaining the reason for their decision and specifying the relevant concurrent investigation.

Once the concurrent investigation has been concluded the complainant may resubmit their complaint to the council for up to one year afterwards.

3. Time Limit to Complaints

Councils do not need to consider complaints made more than one year after the grounds to make the complaint arose. In these cases, the complaints manager should write to advise the complainant that their complaint cannot be considered, explaining the reasons why. This response should also advise the complainant of their right to approach the Local Government and Social Care Ombudsman.

The time limit can be extended at the local authority's discretion if it is still possible to consider the representations effectively and efficiently and/or where 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.

4. Informing Children about the Complaints Procedure

Children must be informed about the complaints procedure in a variety of ways suitable to their age and level of understanding. Copies of relevant leaflets should be provided, for example the children's guide which is given to children before or upon admission to a children's home. Such information must include an explanation of the role of an advocate and provide contact details for advocates who can support children to make a complaint.

Information about the complaints procedure may be made available to children and their families via social media approved by the local authority.

Where children or those acting on their behalf express a wish to make a complaint, they should be given any information or advice they require on how to use the complaints procedure. Their options must be carefully explained including information and advice on alternative methods for resolving their dissatisfaction. For all complaints made by or on behalf of children, help must always be offered to obtain the services of an advocate.

Where a child wishes to make a complaint, they should be referred to the relevant manager or to the complaints manager.

If the complaint is made by or relates to a child in foster care or residential care, it may also be directed to the regulatory authority (Ofsted); although they may not be able to accept the complaint unless the local complaints process has been used first.

5. Receiving Complaints

Representations, complaints and compliments may be made orally or in writing. Some complaints may be received via the Local Government and Social Care Ombudsman.

All representations, complaints and compliments about services to children should be recorded on the complaints database by the complaints team. Representations, complaints and compliments received by members of staff regarding services for which they are not directly responsible should be immediately forwarded to the complaints team at cs.feedback@derbyshire.gov.uk.

In relation to complaints, the emphasis should be on a speedy resolution reached locally wherever possible.

Complaints must be promptly screened and where appropriate, signposted to an alternative procedure to be dealt with if required.

It is important that complaints are fully recognised and not ‘filtered out’ of the statutory complaint system, (thereby not recognising complainants’ rights to have their dissatisfaction formally considered or investigated).

The law says that councils must act swiftly and efficiently when handling complaints, ensuring there are no unnecessary delays. The emphasis should be on a speedy resolution reached locally wherever possible.

Where a complaint includes an allegation that a child has been harmed, the matter must be directed to be dealt with under the multi-agency safeguarding children procedures and must be referred to children’s social care.

Staff may not deal with complaints relating to their own practice and must pass such matters to their own manager.

Statutory Complaints Procedures and Processes

The procedure is divided into three stages:

  • Stage 1 - Local resolution and problem solving;
  • Stage 2 - Formal investigation;
  • Stage 3 - Review panel.

6. Stage One - Local Resolution

Enquiries and very minor disagreements are received daily by members of staff and are dealt with promptly to the satisfaction of the person concerned. These are not regarded as complaints.

In all cases where formal complaints are received, the complaint should be recorded on the complaints database by the complaints team. Wherever appropriate, complainants should be encouraged to seek a local resolution.

All complaints will be dealt with by the complaints manager as follows:

  1. Acknowledge the complaint within 3 working days, notifying the complainant that their complaint has been received and explaining the timescales within which a response will be sent;
  2. Notify the appropriate team manager;
  3. Decide whether the complaint should be investigated under this procedure or whether it should be referred elsewhere, for example under staff disciplinary procedure;
  4. Request that the team manager attempt to resolve the complaint within 10 working days.

If it is not possible to respond within the above timescale - e.g. where files or records need to be checked or a key member of staff is not available - the team manager will arrange for the complaints manager to send a holding letter to advise the complainant of the delay. However the maximum period for a complaint to remain at stage one is 20 working days, unless the complainant has agreed to an extension of time.

Quality Assurance Managers will support the complaints process in localities. They should provide advice and assistance about replies to complaints and ensure that replies meet the designated timescales. Where the initial complaint directly involves the team manager it may be appropriate for the locality head of service to reply.

Where the complaint relates to a child's placement in residential care, the fact that the complaint was made and resolved should be noted in the home's daily log, and a summary of the complaint and the manner in which it was resolved should be recorded in the complaints log and in the child's daily record. Where the complaint involves sensitive personal information, such details should not be held in the complaints log, which is a public record. The manager should consult the complainant to ensure that the matter was dealt with appropriately before countersigning the complaints log.

In relation to children in foster care, a complaint may involve a view about a carer's approach to the care of a child, or the way in which they respond to a child's behaviour. For example when a child complains that they are not being fed properly or a parent complains that a child's culture or religion is being ignored. Staff must be clear about whether the issue that they are dealing with falls under safeguarding or complaints procedures. Consideration should always be given to whether serious concerns or complaints require implementation of safeguarding and child protection procedures. Social workers must consult with their team manager and the operational manager to decide which category any referral falls into and decide a course of action. Complaints and concerns regarding carers approved by independent fostering providers, voluntary adoption agencies and other local authorities would be dealt with under the procedures of their approving agency.

If the matter cannot be resolved to the complainant’s satisfaction within 20 working days, the complainant must be advised that they have a right to proceed to stage two and given assistance to do so as necessary. The complainant may, however, agree to extend the deadline for the stage one process.

7. Stage Two - Investigation

If the complainant is dissatisfied with the outcome of the first stage, they may request a formal investigation of their complaint at stage 2. All requests to go to stage 2 of the complaints process should be dealt with by the complaints manager. The complaints manager will continue to look for opportunities to resolve the complaint, which may include alternative dispute resolution approaches, however this should not delay the progression of the stage 2 investigation.

Consideration of complaints at Stage 2 is normally achieved through an investigation which is conducted by an investigating officer and an independent person. Stage 2 commences either when the complainant requests it (even though the Complaints Manager may feel the complaint has been dealt with under Stage 1), or where the complainant and the local authority have agreed that Stage 1 is not appropriate.

Usually, the issues raised will be those expressed in Stage 1, but it is possible that the complainant may add further issues to their complaint at Stage 2. The Stage 2 investigation should be proportionate to the issues complained about and not, for example, reviewing the council’s entire involvement with the child or young person.

The Complaints Manager should make a decision whether 'new complaints' should be dealt with under Stage 1 or within the Stage 2 process. It may be preferable to deal with 'new complaints' alongside existing ones in order that a consistent approach is taken to the complainant's matters.

There is no time limit for a complainant to ask for a complaint to move to Stage 2, although the guidance encourages this to be done in 20 working days. The Complaints Manager should consider whether, in each case, there are good reasons for any delays by the complainant and not just rely on a pre-determined deadline set by the Council's procedure. The primary consideration should be: 'what is the best way for resolving the complaint?'

Following agreement to formally investigate a complaint the complaints manager will:

  1. Wherever possible meet the complainant to agree the written record of the complaint and explain fully the complaints process. This may include discussion of whether it may be possible to mediate or negotiate a settlement;
  2. Appoint and prepare terms of reference for an investigating officer (who is not involved in the management of the services to the child concerned) and an independent person (who cannot be an employee or an elected member of the authority) to the investigation. The independent person is appointed to shadow the investigating officer. Under the arrangement, the independent person accompanies the investigating officer throughout the investigation and may see the child concerned alone if considered necessary;
  3. Ensure that a copy of the complaint is sent to any staff member named in it and to that person's line manager, unless to do so would prejudice the investigation of the complaint in which case the complaints manager should inform the relevant senior manager of this decision.

The complaints manager and the investigating officer should consider whether it is necessary to halt a particular aspect of the case pending investigation, for example where there are ongoing court proceedings.

The Investigation

Upon being appointed, the investigating officer will:

  1. Conduct an investigation, interviewing the complainant and staff as appropriate in line with Getting the Best from Complaints;
  2. Produce a report making recommendations about action to be considered;
  3. Send a copy of the report to the complaints manager bearing in mind that this, together with the council's response, needs to be sent to the complainant within 25 working days of the receipt of the complaint. If this timescale is not possible, the investigating officer should consult with the complaints manager and agree a timescale for extension. In any event, this extension must not exceed a full response to the complaint within 65 working days of confirming the scope of complaint. The complaints manager will inform the complainant of this agreement and the reason for the extension to the timescale, and wherever possible obtain the complainant's agreement to the new timescale;
  4. Staff and carers need to be aware that it is a legal requirement upon the authority to undertake investigations when a complaint is made. It is therefore essential that they cooperate with the investigation and provide information to the investigating officer through their verbal responses to questions and access to written material.

Action Following Investigation

Upon receiving the investigating officer's reports and any supplementary report provided by the independent person, the complaints manager will:

  1. Ask a senior manager for their adjudication, in consultation with others as necessary, and what action the council will be willing to take in relation to the investigation's recommendations;
  2. Send a copy of the investigating officer's report, any supplementary report prepared by the independent person and the council's response to the report(s) to the complainant. This must be sent within a maximum of 65 working days of receipt of the complaint;
  3. Send a copy of the report(s) to the relevant manager of the service complained about and, if the complaint concerns front-line service providers, the staff themselves;
  4. Advise the complainant of the right to submit a request to the complaints manager within 20 working days that the complaint proceed to a stage three review panel;
  5. Monitor the outcome of the complaint in terms of customer satisfaction with the process and the eventual outcome, and the implications for future service delivery and training.

8. Stage Three - Review Panels

If the complainant is not satisfied with the outcome of the complaint, they have 20 working days to request for the complaint to be considered by a review panel. The panel will usually only be convened if complaints have not been upheld, or the complainant is not satisfied with the adjudication.

The request should be made to the complaints manager and acknowledged in writing within 2 working days. Once the convening of a review panel is agreed, the complaints manager will ensure a review panel is set up and meets within 30 working days of the complainant's request being agreed, or a date agreed with the complainant.

The review panel must be made up of 3 independent people, who must not be:

  1. Employees of the authority;
  2. Elected members of the authority;
  3. A spouse or partner of either of the above.

One member will be appointed as the panel chair. It is good practice that the chair should not have been employed or an elected member of the council within the last 3 years. Under normal circumstances lawyers will not be present at a review panel.

The complainant should be notified of the panel's date and location in writing at least 10 working days before the review panel meets and be invited to attend. The complainant should also be informed of their entitlement to be accompanied by another person and for this person to be able to speak on their behalf.

Those persons involved with the investigation at stage two (e.g. the investigating officer, and the independent person) should also be invited to attend.

The chair should make the final decision on attendees (including asking the local authority to make specific members of staff available to provide specialist advice or opinion). The panel will be attended by the complaints manager.

Panel papers should be sent to panel members and other attendees as soon as these have been agreed by the chair. These should normally include: information on stage one (as relevant), the stage two investigation report(s), the council's adjudication, any policy, practice or guidance information relevant to the complaint, and any comments that the complainant has submitted to the panel. The papers should also include information on any local practice around panels, such as conduct, roles and responsibilities.

The review panel's recommendations should be recorded in writing and copies sent to the appointed senior manager within 5 working days.

The appointed senior manager must respond to the recommendations of the review panel and make the decisions known to the complainant within 15 working days, explaining the council’s decision and reasons.

In terms of the complaints procedure, there is no further action that the complainant can take to progress a complaint.

Complainants should be advised of their right to make representations to the Local Government and Social Care Ombudsman if they are still not satisfied.

9. Unreasonably Persistent Complainants

The council is committed to dealing with all complaints fairly and impartially and it would not normally limit contact complainants may have with its staff. However, sometimes complainants can, because of the frequency of their contact, or content of the communications, hinder the council's consideration of complaints. The council has a policy on managing this process on the council's website for viewing, and there is also guidance in ‘Getting the Best from Complaints’. Staff should seek advice from the complaints team in the first instance.

10. Anonymous Complaints

Where a complaint is made anonymously it is expected that staff will look at the issues raised and record what action they propose to take based on reasonable judgements of the veracity of the complaint. However as it is impossible to provide a written response, all anonymous complaints will be regarded as a representation and fall outside of the statutory procedure.

11. Complaints from Members of Parliament and Elected Members

All representations and enquiries from MPs and elected members are answered by the appropriate cabinet member on behalf of the authority. This is regardless of the addressee. All correspondence is scrutinised by the relevant locality head of service and the response (drafted in the Cabinet lead member's name by the team manager) is sent to the appropriate senior manager prior to sending to the office of the cabinet member.

12. Complaints about Services Commissioned by the Council

All services commissioned by the council are required to have their own complaints procedure within the terms of their contract with the council. Ofsted regulate many of the services commissioned by the local authority. Ofsted set out how they manage complaints regarding these services on their website. All services provided under Ofsted regulation must have an internal complaints procedure. Where complainants remain dissatisfied with the response provided by the commissioned service, they may use the authority's procedures if they so choose.

When the council investigates complaints about commissioned services they will routinely inform Ofsted of their investigation and outcomes.

Appendix 1: Key Lessons from Ombudsman Investigations

Do:

  • Invest time at the outset to decide if a complaint should be considered under the statutory complaints procedure or through an alternative procedure;
  • Speak to the complainant at stage one to define their complaint and manage their expectations of what an investigation might achieve;
  • Keep the complainant informed of any delays;
  • Keep detailed records at each stage of the investigation, including any decision not to use the statutory complaints procedure or not to accept a late request to escalate a complaint;
  • Signpost to the Ombudsman once a complaint completes the statutory complaints procedure, or if the council decides not to investigate a complaint.

Do not:

  • Refuse to investigate a complaint at stage two or three due to a lack of resources or because the council does not think there is merit to the complaint;
  • Switch complaint procedures part-way through. If a council accepts a complaint under the statutory complaints procedure it must complete this to the complainant’s satisfaction;
  • Make an early referral to the Ombudsman if the criteria set out in the guidance have not been met.

From: Children’s statutory complaint process: Guide for Practitioners (Local Government & Social Care Ombudsman, 2021)