A massive thank you to Luke Clements for highlighting our case. The full Ombudsman's Report can be found on his page - http://www.lukeclements.co.uk/omg-will-it-never-end/
From his blog -
It is not every day that an
ombudsman’s report
refers to an investigator’s note saying the above. Not every day that
the ombudsman: asks a council to reflect on its obligations under the
European Convention on Human Rights and the Equality Act 2010; refers to
the number of inaccurate references a council has made to legislation;
concludes that a council gave the impression that it was seeking to
influence the outcome of an independent review of a complaint; refers to
a council’s claim as being ‘disingenuous’.
For all our misgivings about the inadequate funding of the ombudsmen impairing their ability to hold councils’ to account
[1] – the fact that reports of this nature emerge – revealing how some authorities operate in practice – is important.
Hopefully the local authority in question
[2]
will implement the ombudsman’s recommendations and take a long hard
(and reforming look) at the organisational culture that allowed these
deplorable events to occur.
In the next section we provide a résumé of the report and this is then followed by a reflective commentary by
Paul Kelly – a highly experienced Independent Investigating Officer.
________________
The investigation concerned a complaint by a family (Mr & Mrs A
and their 16 year old son X), for whom the ombudsman had already (a year
earlier) upheld a complaint relating to a connected matter. Problems
persisted and a further complaint was made alleging (among other
things): that the council had failed to assess X as a disabled child;
had failed to assess Mrs A (as a parent carer); and had inappropriately
influenced the role of the Independent Investigation Officer (IIO).
The complaint was made on 25 May 2017 and related to assessment
failures that occurred in September 2016. These dates are important, as
the events in question post-date that coming into force of the Social
Services and Well-being (Wales) Act 2014 (which occurred on the 6 April
2016).
The council had a policy, known as the ‘Derwen policy’, which stated –
in effect – that children with ADHD, but who were not ‘disabled’ or did
not have ‘significant developmental delay’ were ineligible for
assessment / support as ‘disabled children’. X had Autism and
Pathological Demand Avoidance and although the Derwen policy did not
specifically mention these conditions it is clear from the complaint,
that the council also treated them in the same was as it treated ADHD.
The IIO investigated the complaints and in due course prepared a
draft report which was overseen and approved by an Independent Person.
The draft report was shared with the council’s officers. The officers
were unhappy about the report – stating (among other things) that is was
‘very one sided’. A meeting with the council was arranged and before
this took place the investigator received a ‘flurry of documentation’
that she had not been shown during the investigation.
It was at this
stage that the IP observed ‘Omg…will it never end’. The IIO was so
troubled that she telephoned the Ombudsman’s Office for advice as to
what to do at the meeting as (in her words) ‘it doesn’t seem right to
me’.
[3]
The IIO attended the meeting but had not anticipated being met by six
senior council officers. She felt ‘a bit overwhelmed’ and that she was
being ‘bullied’. In this respect the ombudsman notes that there was an
‘imbalance in the number present at the meeting’ and that this was
‘sufficient to make her question, as she has, whether the independence
of the process was being compromised’. The council however stated that
it was not seeking to influence the IIO into changing the report,
‘rather it wanted to make sure that “inaccuracies” were corrected’. In
this respect the ombudsman’s report concludes:
… the
overall impression when viewed, objectively, is that the Council was
unhappy with the findings. By acting as it did, it gives at least the
impression that it was seeking to influence the outcome even though I
have no hard evidence that this was its intention (bearing in mind it
has denied such). However, that was how Mr & Mrs A saw it.
Perception is often enough. On the evidence before me, bearing in mind
the Council has not identified anything specific by way of
‘inaccuracies’, despite ample opportunity to do so, I find that it did
act inappropriately.
The council refused to accept most of the recommendations in the
final report (signed off by the IIO and the Independent Person) and in
particular refused to undertake the recommended assessments of X and Mrs
A. In its opinion ‘X did not need care and support beyond that
provided by his parents’ and that his needs did ‘not meet the criteria
as a disabled child under the Equality Act 2000’.
Not only did the
council get the year of the Act wrong – it also fundamentally
misunderstood the law (not least – it seems – that the key Act was not
the Children Act 1989 – as the material parts of this Act had been
repealed by the Social Services and Well-being (Wales) Act 2014). X had
a Statement of SEN; the Council had accepted (in an earlier ombudsman
complaint) that he required a specialist Autism assessment; and X was in
receipt of the highest level of the disability related benefit (PIP).
The ombudsman also observed (as had the IIO) that X’s ‘child in need
plan’ had not been reviewed for some time and so questioned how the
council could confidently say he was ‘not disabled or had no unmet
needs’.
This report is incredibly troubling on many levels – not least that a
local authority had so clearly failed to understand its legal
obligations. What is (to an outside observer) of most concern, is the
level and nature of challenge experienced by the IIO. We are well aware
of families being fearful of the consequences of complaining – fearful
of retaliatory action by authorities
[4]
– but for a local authority to behave in the way described by the
ombudsman towards independent investigators is shocking. Complaints’
investigators are acting on behalf of Chief Executives / council
members.
For a culture to develop where such an investigator considers
that she is being bullied and for the ombudsman to agree that the
impression given was of a council seeking to influence the outcome of an
independent review – strikes at the very heart of the review process.
Ultimately senior legal officers and council members are responsible for
the organisational culture of their authority – and these officers /
members should take a long hard look at this report.
____________
We wanted to know if this sort of action by a local authority was
unique – or whether complaints’ investigating officers encountered this
on other occasions. We therefore asked
Paul Kelly
– an expert Independent Investigating Officer of over 14 years to
comment on whether, in his experience, overt pressure of this kind was
sometimes placed on investigators – and for his general comments on the
shortcomings of the social services complaints process as it currently
operates.
General information about the social care complaints’ process in Wales is provided on the Rhydian pages –
click here to access this note.
_________________________
Personal reflections of Paul Kelly – Experienced Independent Investigating Officer.
I was lucky: the first local authority
to take me on as an independent investigator in 2004 was the best of the
twenty or so I encountered (until finishing this role in 2018). After
many years in the probation service, I knew about writing reports, but
not much about the world of social care. That first authority gave me a
good grounding, including encouragement to make strong statements in my
Stage 2 reports. The complaints manager knew her job inside out and was
confident in her level of independence from social care structures.
There was joint training with the local government ombudsman and with
social care managers.
Much turned on the qualities of that
complaints manager and I relied on her for advice and guidance. Not only
that, reports did not get past her unless the arguments and quality
stacked up: she never sought to influence findings. As a matter of
routine there was a meeting with the adjudicating officer (i.e. the
senior manager responsible for the local authority’s response to the
complaint) after reports were submitted. Some probing was to be
expected. Overall, it was a good thing: it kept me on my mettle and I
had a reasonable sense of what the local authority was going to do about
my findings and recommendations.
Even within that system there were some
awkward moments but nothing serious, except perhaps when the authority
did not want to accept a report I had written in Easyread (or as close
as I could get to it). My view was that the report needed to be
accessible to the person with learning disabilities who had made the
complaint: the authority’s view was that the report should have been
conventional but with separate interpretation for the complainant. My
mistake was not discussing that properly with the complaints manager
beforehand.
What if there is no complaints manager
or if there is somebody in the role without the strengths of the manager
I have described above? In my experience, only a handful came anywhere
near the standards set in that first local authority, which in any case
began to dismantle as austerity-driven cuts began and the manager left.
I have illustrated the good, what about
the bad? Have I ever experienced anything as bad as the case discussed
above? Yes, up to a point but not very often. One local authority tried
to put a stop to an investigation I was carrying out. Among various
machinations, they consulted their legal department about grounds for
removing me as independent investigator and attempted to include a
senior manager in our interviews with service delivery staff. The
independent person objected to that and together we produced our reports
that, in the end, a disgruntled head of service had to accept and
agree. The independent person was heavily involved and enormously
helpful: I concentrated on the complaints while he watched over the
process, reporting on the heavy-handed and inappropriate actions of the
authority. I had been on the point of taking the matter to the chief
executive (complaints arrangement are under that person’s
responsibilities) but we got through without needing to do that.
Why could this have happened? The
complaints manager had recently departed. She and her staff had
previously encouraged investigators to be thorough and probe hard but
fairly. They did not like to re-employ investigators who produced
half-hearted or poorly argued work. They were actively pursuing early
resolution work and had nurtured a group of high quality independent
persons. The good work of previous complaints managers unraveled when a
new hardline regime of disruptors took charge, so creating confusion,
misunderstanding and not a little mayhem. The independent person and I
were among the first to feel the chill.
Did we get any further work from
that authority? I think the answer to that question will be obvious.
I could describe two further examples
of local authorities that behaved badly. Both involved directors
bypassing adjudicating officers, getting too heavily involved but
ultimately having to give ground. Both instances also included newly
appointed complaints managers who were administrators rather than
complaints professionals. The role of the complaints manager is crucial,
without one – or without a good one – I think it is far more likely
that things will go wrong. Complaint investigations are often serious
and complex: local authorities need steady hands on the tiller.
Out of my more than 90 enquiries, three
featured overt attempts at undue influence by local authorities. I
checked with a colleague who has much more complaints experience than I:
we agreed that in the main, local authorities respected the
independence of investigators and did not seek to influence findings and
recommendations.
Thee overt attempts were three too
many. I am inclined to think that covert influencing is more prevalent.
Well-run independently focused complaints sections provided me with
plenty of work. Those repeat commissions dried up when regimes changed.
Was that anything more than coincidence?
With experience of a very well-run
complaints section, I was used to having all records readily available
and staff interviews arranged for me. Legal advice was available and
training provided. It was a shock to do work elsewhere where nothing
very much was made available and investigators had to go hunting for
records. Typically there was no training and no legal advice despite
some tricky legal questions being involved in an investigation.
Interviews with staff were variable: some were very cooperative and came
fully prepared, others were unprepared and vague giving apparent
compliance and little more. I made notes of all meetings and they went
to interviewed staff in draft form, but all too often without reply.
More than once key staff who had moved on to different authorities
refused to be interviewed, even though they had been centrally involved
with the matter complained about. And social care records? I am afraid,
criticising them could be no more than shooting fish in a barrel.
I have worked on Stage 3 review panels:
they are, in effect, an appeals process for complainants dissatisfied
with Stage 2 outcomes. Poor quality independent investigator reports
have been a recurring feature. Examples have included: local
authorities’ versions being too readily accepted; descriptions of legal
positions being wrong; key complaints information being omitted; absence
of meaningful analysis; reports being padded out with unnecessary
narrative (20,000 words on occasion) and the investigator and
independent person declining to look at relevant supporting material
offered by complainants.
