Summary: Mrs T complained about the Council’s handling of an investigation into allegations made against her as a foster carer. The Council failed to properly investigate the allegations and consider Mrs T’s complaint about the matter. The Council agreed to apologise to Mrs T and pay her £450 to recognise the distress and time and trouble caused to her.

The complaint

1. Mrs T complained about the Council’s handling of an investigation into allegations made against her as a foster carer. Mrs T complained the Council took 12 months to provide a final response and had not implemented the recommendations it identified. Mrs T stated this caused herself and her family distress and frustration and put her employment at risk.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’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)
5. 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

6. I read the documents Mrs T provided and discussed the complaint with her on the telephone.
7. I considered the documents and comments the Council provided in response to my enquiries.
8. Mrs T 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

The legislation and guidance

Allegations against foster carers

9. Statutory guidance Working Together to safeguard children 2018 provides guidance on managing allegations against people who work with children. It says councils should appoint an officer to manage investigations into allegations. The officer in the council is the Local Authority Designated Officer (LADO). They must also keep the foster carer informed of progress during and after the investigation.
10. When there is an allegation of assault there is likely to be parallel criminal and child protection investigations. A police investigation will focus on whether there is sufficient evidence to prove beyond reasonable doubt a crime has been committed. Child protection enquiries seek to find out, on the balance of probabilities whether a child is at risk of, or has suffered significant harm.
11. The National Fostering Minimum Standards are the standards that apply to fostering services. It says an investigation into allegations against carers should be carried out fairly, quickly and consistently. It should provide protection to the child but also support the foster carer. Foster carers should be told in writing about any allegations against them and given the timescale for the investigation.
12. The Council has a policy titled Allegations of abuse made against adults who work or volunteer with children. It states where it is a complex case or difficult circumstances an independent investigator may be required.
13. The investigation concludes when the LADO has considered the evidence and records one of five possible outcomes. It decides whether the allegation is:
• Substantiated - sufficient evidence to prove the allegation that a child has been harmed or there is a risk of harm;
• Unsubstantiated - insufficient evidence to either prove or disprove the allegation. The term, therefore, does not imply guilt or innocence;
• Unfounded - where there is no evidence or proper basis which supports the allegation being made;
• False - there is sufficient evidence to disprove the allegation; or
• Malicious - there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive.
14. As soon as possible after an investigation into a foster carer is concluded, their approval as suitable to foster is reviewed. Part 5 of the Fostering Services Regulations 2011 provides for the assessment and approval of foster carers. The panel also reviews existing approval and can recommend changes in the terms, or termination of a foster carer’s approval. A panel is chaired by a person who is independent of the council and consists of at least three people with appropriate experience and expertise.

Safeguarding investigation

15. Section 47 of the Children Act 1989 sets out that councils have a duty to investigate if there is reasonable cause to suspect a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. This is usually discussed in a strategy meeting.
16. The Working Together guidance states child protection enquiries should include multi-agency working and information sharing between key organisations. The initial strategy discussion should decide if there will be a joint or single agency investigation and should include police, health and education professionals. If a child protection investigation is needed health professionals should provide paediatric or forensic medical assessments of the child if required.

Council complaints procedure

17. The Council’s Feedback policy states where it receives a complaint at stage 1, an investigating officer will investigate and respond within ten working days. If the complainant is not happy with the response at stage 1, they can escalate to stage 2. At stage 2 the Director will investigate and respond within ten working days.

What happened

18. In October 2020 Mr and Mrs T were foster carers. Mrs T also had several voluntary positions working with children. Mr and Mrs T had three foster children in their care, Child X, Child Y and Child Z. Child X made an allegation of assault against Mrs T to their teacher and had a visible injury. The teacher referred the information to the Council. The Council arranged for Child X to go and stay with a new family. Child X did not return to Mr and Mrs T’s house.
19. The Fostering Manager made a referral to the LADO about the allegation. The LADO called an initial meeting with the police, the Fostering Manager and the Child Looked After Team Manager. The police did not attend the meeting. The minutes show the attendees felt there needed to be a joint investigation with the police. The actions from the meeting were:
• the LADO would discuss the case with the police;
• a social worker would speak with Child Y and Child Z; and
• the Fostering Manager would tell Mrs T it had received information of concern but no further details as the police may investigate.
20. A social worker visited Child X and they provided an account of the allegation. A police officer also spoke to Child X separately and an officer took photographs of the injury they had. Child X did not agree for the police to formally interview them.
21. A social worker spoke to Child Y and Child Z. Both children told the social worker they wished to stay with Mr and Mrs T. Child Y, who was at home at the time of the alleged assault gave an account of what they heard.
22. There were two further LADO meetings over the following five days with the same participants. There were no representatives from the police, education or health. The professionals decided Child Y and Child Z could stay with Mr and Mrs T.
23. The case record show the Safeguarding Manager had oversight of the LADO process. Five days after the start of the investigation the Safeguarding Manager documented the police investigation was continuing and they would share relevant information when it was available.
24. Because there was a current police investigation nobody from the Council discussed the allegation with Mrs T. Mrs T stated she repeatedly tried to provide the Council with documentary evidence but the Council would not accept it.
25. Two weeks after Child X reported the allegation the police interviewed Mrs T and closed the case without any further action.
26. That day the LADO held the final review meeting. The minutes of the meeting show the police investigation had closed and they had not formally interviewed Child X. It stated the LADO did not know the content of the police interview with Mrs T or the statement she provided. The meeting found Child X’s allegation was substantiated.
27. The Fostering Manager told Mrs T the result of the LADO investigation. In November 2020 the Fostering Manager visited Mrs T at home. They told Mrs T the full details of the allegation and the injury seen on Child X. Mrs T stated that was the first time anyone had told her the details of the allegation against her.
28. In November Mrs T complained to the Council about the LADO process and the decision it made. She stated she had not been able to give her account either verbally or through the documentary evidence she had. The Council began to consider the matter through a team solution process.
29. In December the fostering panel considered Mr and Mrs T’s fostering approval. The panel recommended to change Mr and Mrs T’s approval to specifically fostering Child Y and Child Z. The minutes show the panel was concerned the police and child protection investigations had not been robust. It identified Child X had not been medically examined or appropriately interviewed. It also said the LADO had not given Mrs T the right to provide an account of the incident.
30. The panel recommended an independent review of the child protection investigation, the LADO process and clarification of Child X’s injury. It also recommended mediation between Mrs T and the fostering service to repair the working relationship.
31. In early 2021 the Safeguarding Manager met with Mrs T to discuss her concerns around the LADO process. They reviewed the complaint and in March produced a ‘Team Solution’ document. The document made the following statements:
• The police not attending the LADO meetings did not impact the decision made by the LADO. In the future it would delay the initial meeting until police could attend;
• The Fostering Manager had not gathered documentary evidence from Mrs T during the investigation. In the future the LADO would request this as soon as possible after an allegation was reported;
• Children’s Services had reviewed the decision making within the LADO process and found they were appropriate and based on evidence provided by Child X.
• The next foster panel review should consider Mrs T’s documentary evidence.
32. Mrs T was dissatisfied with the Council’s team solution response and made a further complaint to the Council. She said:
• she had not been able to give her account about what happened and therefore the LADO process could not reach a balanced conclusion;
• the LADO investigation did not follow due process as it did not collect documentary evidence she had tried to provide; and
• the Council had not provided the mediation recommended by panel in a timely way.
33. The foster review panel considered Mr and Mrs T’s approval again in April 2021. The Council told the panel a review of the conclusion was not needed. It said it recommended the panel consider Mrs T’s documentary evidence. The panel raised its concerns the Council was asking it to consider matters for the LADO investigation, which was not its purpose. The panel reiterated the concerns it raised previously. It stated it remained concerned about the LADO’s assertion the injury was in line with Mrs T assaulting them. It said it was an ‘opinion needed to be given by a forensic medical examiner or paediatrician as a social worker, police officer and LADO were not sufficiently qualified’. The panel noted mediation had not started.
34. In May 2021 the Council provided its stage 1 complaint response to Mrs T. It said:
• the LADO process had made evidenced based conclusions;
• Mrs T had the opportunity to provide her account in her police interview;
• the Fostering Manager’s failure to provide the documentary evidence to the LADO meetings was a failure in process; and
• it failed to provide mediation in a timely way.

It recommended it should send Mrs T a letter of apology.

35. In June Mrs T complained to the Council about its stage 1 response. She reiterated the Council had not provided mediation in a timely way. Mrs T also said an apology for the failure to follow due process was inadequate and it should reconvene the LADO process to consider all the information.
36. The investigating officer considered Mrs T’s complaint and produced a ‘lessons learnt’ document in July 2021. They shared the content of this verbally with Mrs T. It said because it had failed to follow the required process, it should have revisited the LADO process and fully considered all available information. It stated it had not dealt with the complaint in a timely way.
37. In August Mrs T complained to us. She stated she had not received the result from her stage 2 complaint, and the Council had not completed the stage 1 recommendations. The Council told us it was considering Mrs T’s complaint in the final stages of stage 2.
38. In September Mrs T told the Council she was no longer willing to engage in mediation.
39. In November 2021 the Council issued its stage 2 response. It stated:
• It did not provide mediation in a timely way;
• its stage 1 response that the LADO decision was evidence based did not fit with its finding it had not followed due process;
• the stage 1 recommendation of an apology did not reflect the impact of the process on Mr and Mrs T;
• Mrs T had since agreed to an independent review of the LADO process. The Council would share the findings of that with her within five working days; and
• it had not written the stage 1 apology letter and would send a full apology letter to Mrs T.
40. In January 2022 the Council provided Mrs T with the independent LADO review report. A LADO from the Council who had not previously been involved in the case conducted the review. They made the following findings:
• the Council failed to call a child protection strategy meeting to consider the risk of harm to Child X. Therefore, there was no joint investigation with the police or a forensic medical examination. There was no confirmation of the cause of the injury;
• the police did not share the photographs of Child X’s injury, the content of its interview with Mrs T or her written statement with the Council. The police did not share the full details of the allegation with Mrs T;
• the LADO closed the process prematurely without obtaining and considering documentary evidence
• the original finding of ‘substantiated’ was correct.
41. The Safeguarding Manager provided their comments on the report and said a finding of unsubstantiated would be more appropriate. The Strategic Lead agreed with the Safeguarding Manager.
42. In February 2022 in response to my enquiries the Council stated it accepted the independent LADO review findings. It said it would:
• Address the social work practice learning in this case; and
• Arrange a meeting with Mr and Mrs T to discuss the impact on them.
43. The Council said it did not know why it did not send the stage 1 apology letter. It said it did not provide the stage 2 apology letter because the director provided a verbal apology to Mrs T instead.
44. Mrs T stated she had not received a verbal apology and was expecting to receive the written apology letter as set out at stage 1 and stage 2.

Lessons learnt

45. The Council identified the following lessons and improvements during the process outlined above. For ease of reference, I have collated them below;
• the police need to attend initial LADO allegation meetings even if this delays the LADO process;
• an initial allegation meeting is not the same as a child protection strategy meeting and the two should run concurrently;
• the police should share information it holds in the LADO process and the LADO should challenge if it is not happening;
• social workers and police should hold joint visits to children during investigations to avoid the child having to retell their story;
• the fostering service should recognise the emotional impact of an allegation on a carer and support them;
• the LADO should request documentary evidence early in the investigation and will not conclude the process until it receives it;
• all partner agencies must have completed their actions before the LADO closes the case file; and
• where a complaint has been upheld and a recommendation made, the Council should complete it without delay and keep the complainant updated.

My findings

46. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision.

Investigation

47. The Council should have held a LADO allegation meeting and a child protection strategy meeting. The strategy meeting should have included the police and health professionals. The Council should have completed a child protection investigation. The Council did not and that was fault. The Council’s failure to complete a child protection investigation meant Child X was not forensically medically examined, and it did not establish the cause of their injury. This caused distress to Mrs T when the Council attributed causing Child X’s injury to her.
48. The Council did not tell Mrs T what the allegation was until after the LADO process had closed and did not provide it in writing. Although the Council was limited in what it could discuss with Mrs T due to the police investigation, the LADO held the final meeting after the police investigation had closed. The Council failed to obtain a full account from Mrs T or consider documentary evidence she tried to provide. This was not in line with the standards and was fault. It caused Mrs T distress.
49. The records show the LADO based their decision on Child X repeating the same account four times and the description of the injury they had. The LADO failed to obtain:
• an account from Mrs T;
• information from the police about the content of the interview;
• Mrs T’s written statement to the police; and
• a medical opinion of the cause of Child X’s injury
50. That was not in line with the standards and was fault. It meant the LADO did not have enough relevant information to make an informed decision. When it did consider all the available information it decided the allegation should be unsubstantiated. The faults meant the Council missed the opportunity to get it right the first time around. It caused Mrs T frustration and uncertainty.

Complaint handling

51. Mrs T complained to the Council first in November 2020. It took 100 days longer than stated in the policy to provide a stage 1 response. Mrs T complained at stage 2 in June 2021 and the Council provided a response in November 2021 which was 102 days longer than the Council policy states. It took a further 47 working days to provide the independent LADO review which was 42 days longer than it said it would take. The delay was fault.
52. The fostering panel identified concerns about the investigation process in December 2020. In March 2021 the Safeguarding Manager identified the LADO investigation had not followed due process. However, the Council did not begin to reconsider the LADO investigation until October 2021. The Council missed the opportunity to identify the fault and remedy the injustice earlier. That was fault.
53. The Safeguarding Manager oversaw the first LADO investigation. The fostering panel recommended an independent review of that investigation. The Safeguarding Manager conducted that review as part of the first consideration of Mrs T’s complaint in the Team Solutions process. The Safeguarding Manager was also the line manager for the LADO completing the independent LADO review. The LADO who completed the independent review was a member of the Council LADO team. Although they were not involved in the case originally they had knowledge of it, and they considered the actions of their team colleagues and managers. The lack of independence in elements of the complaint process was fault and leaves uncertainty as to whether the outcome would have been different if investigated by an independent person.
54. Although the Council identified some faults during its complaint procedure and some lessons learnt, it did little to put right the impact for Mrs T. The Council twice stated it would write an apology letter to Mrs T and did not do so. That was fault.
55. Mrs T had a substantiated allegation attributed to her for over 16 months which the Council later rescinded. That impacted her employment, voluntary positions and foster caring. Mrs T had to go to significant time and trouble to get the Council to consider and properly respond to her complaint.

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Agreed action

56. Within one month of this decision the Council agreed to;
• write to Mrs T and apologise and pay her a total of £450 to recognise the distress, uncertainty and time and trouble caused to her by the faults identified above;
• arrange and hold the meeting with Mr and Mrs T as set out at paragraph 42;
• update the LADO and fostering file to reflect the allegation against Mrs T was unsubstantiated and confirm it has completed this in writing to Mrs T; and
• reconsider Mr and Mrs T’s fostering approval with the new finding of the allegation being unsubstantiated.
57. Within two months of this decision the Council agreed to:
• provide documentary evidence of how it has implemented the lessons learnt identified at paragraph 45; and
• remind relevant staff of the importance of following the timescales set out in the Feedback policy.
58. The Council will provide us with evidence it has completed the recommendations.

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Final decision

59. I have completed my investigation. I found faults leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman