Support for unaccompanied children and children in families
How do I complain about services provided to unaccompanied asylum seeking children by Children's services departments?
Complaints under the Children Act 1989
The Children Act 1989 provides for the right to complain about services provided to children who are 'looked after' or 'in need' [1] and children 'leaving care' [2]. All unaccompanied children who are being 'cared for' by a local authority, irrespective of their designation under the Children Act 1989 (e.g. as section 17 or section 20 or as a 'care leaver') can therefore use these complaints procedures. Indeed a child assisted under section 17 could use the complaints procedure to consider whether they should be accommodated under section 20. A young person who has approached a local authority for assistance but is being 'age disputed' by that authority could not use these procedures but may instead have recourse to judicial review as a remedy.
The following persons may complain under section 26: the child, the parents or foster parents, a person with parental responsibility, or any other person who has sufficient interest in the child's welfare. Only the care leaver may complain under section 24D.
There are three stages to the complaints process:
- stage 1- Local resolution (the informal complaint)
- stage 2- Investigation (the formal complaint), and
- stage 3- Review panel.
All complaints must be dealt with in accordance with the Children Act 1989 Representations Procedure (England) Regulations 2006 and the Government guidance: Getting the Best from Complaints- Social Care Complaints and Representations for Children, Young People and Others [3]. This guidance has been issued under section 7 of the Local Authority Social Services Act 1970 which means local authorities must conform to it unless there are exceptional circumstances for not doing so.
Complaints may be made either orally or in writing but in any case no later than a year after the grounds to make the complaint arose. The LA can, however, consider complaints made outside the time limit if it finds that it would not be reasonable to expect the complainant to have made the complaint within the time limit and it is still possible to consider the complaint effectively and fairly [4]. The LA can refuse to consider certain complaints such as where court proceedings have been initiated regarding the same matter. In this case the LA must inform the complainant as soon as possible of their decision not to consider the complaint giving the reasons for their decision. [5]
When the LA is approached about a problem regarding their services, it must, as soon as possible, give the complainant information in writing about the complaints procedure and if necessary, assistance and advice on how to follow the procedure [6]. When the complaint is made by a child or young person, the LA must also provide the complainant with information about advocacy services and/or offer him/her help in finding an advocate [7].
Where the complaint is made by a person referred to in section 26(3)(e) i.e. a person with sufficient interest in the child's welfare, the LA must decide as soon as possible whether the person does indeed have sufficient interest. In deciding this, the LA must take into account the views of the child if they consider it appropriate to do so. They must inform the person, and the child if appropriate, of their decision. [8]
Where the complaint relates to a change in a care plan, a placement or a service the guidance states that the decision in question should be deferred until the complaint has been properly dealt with. Although the decision to defer should be taken on a case by case basis there should be a presumption in favour of deferring the decision unless this would be prejudicial to the child. [9]
Local resolution (stage 1) [10]
When a complaint is first made, the LA must try to reach a settlement to the satisfaction of the complainant within 10 working days ( the LA can extend the period for another 10 working days in the case of complex issues) [11]. This is done by informal discussion between the young person and his/her advocate and the staff at the point of service delivery. If no settlement can be reached the complainant can submit a formal complaint. If the original complaint was made orally a written record of the complaint must then be recorded by the LA, inviting comments from the complainant [12].The complainant may decide, in agreement with the LA, to submit a formal complaint without going through the informal stage.
Investigation (stage 2)
When a formal complaint is made the LA must appoint an independent person to consider the complaint with the authority[13]. The investigation of the complaint will be led by an investigation officer on behalf of the authority who can either be a member of staff or brought in from outside.
The LA must formulate a response to the complaint and notify this to the complainant and advocate, where relevant, within 25 working days. [14] Where the LA is unable to comply with this time limit, it must notify the complainant of the reasons for this failure and of the date at which a response will be formulated, being no later than 65 working days from the start date (see note 9).
The response is prepared by an adjudication officer and is based on the reports by the investigation officer and the independent person, as well as the complainant's desired outcome. The LA must include copies of the reports in their response to the complainant.[15]
Review panel (stage 3)
If the complainant is unhappy with the LA's response s/he, or his/her advocate, can make a request for the complaint to be considered by a review panel within 20 working days of being notified by the LA of its response[16].
The panel must meet within 30 working days from the receipt of the request. If the complainant wants to attend the meeting s/he can be accompanied by his/her advocate, or any other person of his/her choice who can, if the complainant so wishes, speak on his/her behalf. Persons to be notified of the panel's decision within 5 working days of the meeting are: the LA, the complainant, the advocate, the independent person and any other person whom the panel considers has sufficient interest in the case.
Outcome
The LA must together with the independent person consider the recommendations and decide how the LA will respond to them within 15 working days of being notified [17].
Although the LA must take into account the findings of the panel, it is not bound to implement the decision. Failure to do so may, however, constitute grounds for challenge by way of judicial review or by application to the Local Government Ombudsman.
Complaints to the Local Government Ombudsman (LGO)
The LGO investigates cases arising from complaints involving the local authority. He has the power to determine whether maladministration has taken place and whether there has been an injustice from which someone has suffered as a result. Complaints can me made by, or on behalf, of the person affected by the maladministration. The complaint should be made within 12 months of the date the complainant first became aware of the problem, although the Ombudsman has discretion to consider older cases. The issue must have been brought to the attention of the LA and the authority given the opportunity to investigate. This does not mean however that the complainant has to go through all the stages of the complaint procedure before bringing it to the attention of the LGO.
If the LGO finds that there has been maladministration causing injustice s/he may decide to award compensation. The LA does not have to abide by the Ombudsman's recommendations but will generally do so.
Revised 14/02/08
Notes
[1] Children Act 1989, s. 26
[2] Children Act 1989, s. 24(d)
[3] The guidance can be found on the Every Child Matters website here:
[4] Regulation 9. See also paragraph 3.3 of the guidance.
[5] See Regulation 8.
[6] See paragraph 3.4 of the guidance.
[7] Regulation 11.
[8] Regulation12.
[9] See paragraph 6.5 of the guidance.
[10] Regulation 14 and 15.
[11] The limit normally runs from the day the complaint was received except in two circumstances: where the complainant has asked for an advocate in which case it runs from the date the advocate was appointed, or where the complainant falls under section 26(3)(e), it runs from the day the LA decides that the person has sufficient interest to submit the complaint. See Regulation 14(3).
[12] Regulation 16.
[13] Regulation 17.
[14] The limit normally runs from the day the complaint was received except in two circumstances: where the LA and complainant agree not to go through the informal stage the time limit runs from the date this was agreed upon, and where the complaint was made orally, it runs from the date the complaint was finally recorded in writing by the LA.
[15] See paragraph 3.8 of the guidance.
[16] Regulation 18.
[17] Regulation 20.
