Delay and the ombudsman: how depressing.
In the last few years the Cerebra Legal Entitlements and Problem Solving (LEaP) Project has had to deal with many cases of delay by councils in England and Wales in the handling of complaints by families concerning cuts to the support packages of their disabled children.
In November 2019 the Project published a research report ‘Unacceptable delay: Complaints procedures for disabled children and their families’. The research analysed over 1,500 Local Government and Social Care Ombudsman reports and revealed ‘serious (and systemic) failings in the way that a number of English councils investigate children’s social service complaints’. The research considered English ombudsman cases because its on-line database of reports is more extensive than that of the equivalent ombudsman in Wales.
The report emphasised that delay is:
an especial problem for children: children don’t get a second chance at childhood; children can’t stop their needs changing while they hang around waiting for a public body to get its act together. Delay is insidious and pernicious: an ill that is almost impossible for a poorly networked parent to confront.
The report expressed particular concern about the absence of dissuasive penalties for badly behaved councils: for councils that ‘spun out’ complaints and failed to comply with their legal obligations. It noted that in the majority of the cases where the ombudsman found fault with a council’s complaint handling, he simply remitted the complaint back to the council without a recommendation for compensation for the delay – despite the average time (from the initial complaint to the LGSCO’s report) being 345 days. In the minority of cases where compensation was recommended, the average time amounted to 572 days and the average compensation amounted to 30p per day.
The report concluded that the ‘current regime rewards councils that maintain dysfunctional complaints systems, as the penalties for such poor behaviour are either minimal or non-existent’. It made a number of recommendations, including the need ‘for seriously dissuasive measures to be available which are capable of counteracting behaviour of this kind’. This included the need for the ombudsman to recognise that significant delay for a disabled child was a substantive harm for which compensation should be paid.
The report was copied to the ombudsman and we waited for a case to emerge that might give the opportunity for the ombudsman to change his approach on this issue. Such a case came along in the form of complaint, published on the 2 July 2020 – namely no. 19 012 768 against Hertfordshire County Council dated 24 March 2020.
The facts are that Ms X, complained that the council had, without warning, cut the care packages for her two disabled sons at the end of 2018. Ms X complained promptly, making two substantive complaints. The council responded in early January 2019 upholding only one of the complaints. Ms X was dissatisfied with this response and on the 25 January she asked that it escalate her complaint to stage 2. Despite a series of ‘chasing’ emails by Ms X, the council failed to do this and so in November 2019 she contacted the ombudsman. In March 2020 the ombudsman held this to be maladministration and noted that (para 20):
It is of concern that this case is part of a pattern of the Council failing to adhere to the statutory process for dealing with social care complaints by or on behalf of children. It is not for the Council to substitute its own methods for statutory guidance.
The ombudsman returned the complaint to the council to investigate at stage 2 of the complaints’ process (ie to do what the law requires it to do). The ombudsman made no recommendation for compensation for the delay saying:
As the Council has not yet investigated Ms X’s complaint, it is not possible to say if she or her children have suffered an injustice as a result of the fault.
So the ombudsman again makes clear that, despite the strength of evidence on this issue, he does not consider delay – in itself – to be an injustice: that dysfunctional complaints processes that create prolonged delays for disabled children and their families are not something that should attract compensation recommendations. In this case the delay between her request for a stage 2 investigation and the ombudsman’s recommendation that the council undertake such an investigation was (by my calculation) 424 days.
424 days of frustration, of uncertainty, of having to send emails, complete ombudsman complaints forms, of additional stress adding to all the other unnecessary aggravations that families with disabled children experience – of knowing that complaining is almost certainly futile – but still feeling ‘as a matter of justice’ it has to be done.
How incredibly depressing.