Summary: There was fault by the Council because it did not properly plan Miss K’s transition from Children to Adult Services and how it would arrange and fund her care. There was also fault in its complaint handling as it failed to refer Miss K’s complaint to a stage three review panel in accordance with the statutory complaints process. The Council’s shortcomings caused Miss K and her foster carer distress and frustration. They are also left uncertain that some matters might have been resolved had the Council completed the complaints process. The Council has agreed to take the further action I recommended to remedy the complaint.

The complaint

1. Mrs B was foster carer to Miss K, who has additional needs. Mrs B complained that the Council did not adequately prepare for Miss K’s transition from children’s services to adult social care, when she turned 18 years old. This meant that important matters such as how Miss K would manage her finances, and how she would get to college were not resolved in time. The Council arranged for an independent investigation under the children’s statutory process.
2. Mrs B and Miss K complain that the Council’s investigation of the issues was not sufficient and has not adequately addressed the complaints raised.
3. Mrs B says the Council’s shortcomings have caused her and Miss K significant distress, and has affected her greatly. She wants the Council to apologise to them both, acknowledge that the investigation was not adequate, and explain what happened. Mrs B would also like the Council to make sure that college transport is arranged for September 2022 and to consider making a payment to her in recognition of the time and trouble she has been put to in order to pursue matters with the Council.

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What I have investigated

4. I have investigated Mrs B’s complaint about how the Council investigated these matters. I have not investigated matters that have been considered by the court, for the reasons set out below.

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The Ombudsman’s role and powers

5. 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)
6. If we are satisfied with an organisation’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)

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How I considered this complaint

7. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments I received before issuing this final decision.

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What I found

The law and policy

The Children’s social care services statutory complaints process

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
9. The first stage of the procedure is local resolution. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation.
10. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The statutory guidance says the purpose of the review panel is to consider the adequacy of the stage two investigation, obtain any further information and advice that may help resolve the complaint and reach findings on the complaints it is reviewing.
11. The independent investigator, at stage two, and the panel at stage three, can make recommendations. The Council should consider these and decide if and how it will implement them.
12. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Transition from children to adult services

13. When a child reaches 18 years of age, they are legally an adult and responsibility for meeting their needs moves from the council’s children services to its adult services. The legal basis for assessing their needs changes from the Children Act 1989 to the Care Act 2014.
14. Statutory guidance says transition assessments should begin when the council can be reasonably confident about what the young person’s needs for care and support will look like when they turn 18. However, for a young person like Miss K, with an Education Health and Care plan, the process should begin in year 9 (age 13 to 14). The purpose of the assessment is to provide the young person and their family with information so they know what to expect in future and can prepare for adulthood.
15. The assessment must identify all the young person’s needs for care and support and identify the outcomes the young person wishes to achieve. The assessment should also consider whether the carer is able to continue in their caring role after the young person turns 18.

Staying put guidance and the Council’s process

16. Staying put guidance says councils may choose to extend foster placements beyond the age of 18. Policies on staying put should set out “whether additional allowances provided when the child was a foster child to ensure they were embedded in the family will continue, for example holiday allowances, birthday and Christmas/festival allowances”.
17. The staying put arrangements are set out in the young person’s pathway plan, the carers will sign a staying put agreement and the Council will make payments to the carers.

Shared lives

18. Under the Shared Lives scheme adults receive care and support from ordinary family households to help them live well. The local authority and the Shared Lives carer signs an agreement which sets out their obligations. The local authority pays a weekly fee to cover the rent and household costs, and the care and support provided.

Court of Protection

19. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
20. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. Any decision made on behalf of a person who lacks capacity must be in that person’s best interests. If there is a conflict about whether a person has capacity to make a decision, or what is in a person’s best interests, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision. The Court of Protection may appoint a deputy to make decisions for a person.

What happened

Background summary

21. Mrs B was foster carer to Miss K from an early age. Miss K turned 18 in February 2019, and is considered vulnerable due to her learning difficulties.
22. I have used the term ‘transition’ to refer to the change from the Council supporting Miss K through children’s services to its adult services meeting her needs. My understanding is that the Council only started planning transition in January 2019, less than a month before she turned 18, when a new social worker visited the family at home. It was agreed that Miss K could continue to live with Mrs B under a staying put agreement. The Council agreed that it would continue to fund Mrs B as Miss K’s foster carer while it finalised how it would fund the staying put placement. Mrs B would also need a shared lives agreement and this could be with the Council or Kent County Council (as Mrs B actually lives in the County Council’s area).
23. The Council said it completed a mental capacity assessment in February 2019 and found Miss K does not have capacity to manage her financial affairs. The Council considered that Mrs B should no longer manage her finances as she would now be paid as a carer, and so to also manage Miss K’s money could be a conflict of interest.
24. The Council asked Mrs B for all the financial information including details of Miss K’s bank accounts, her benefits and details of her expenditure. In the meantime, Mrs B says the Council stopped making the payments to her to support Miss K. I have set out details of missed payments below.
25. The Council applied to the court of protection for deputyship so a deputy could act on Miss K’s behalf for finances. The deputy could be the Council itself or an independent person. Mrs B signed a letter of relinquishment in April 2019, which allowed the Council to become appointee for Miss K’s benefits.
26. Mrs B complained to the Council about a number of issues including, that the Council had not planned Miss K’s transition to adult service and the staying put arrangement properly; that it had taken court action to manage Miss K’s finances when she did not need or want this; that it had not made payments due to Mrs B; that it had not communicated properly about Miss K’s holiday so it was not clear she could go; and that it had not arranged transport for Miss K to college so that she had to miss vital first weeks.

The Council’s complaint handling

27. The Council appointed an Independent Investigating Officer at stage two of the statutory process. The investigation shared its conclusions with the Council and Miss K. It recommended a robust review of financial support at a senior level, a review of the payments due, and a review of the complaints process so that issues are raised with the social worker first. It did not recommend that the Council apologise to Mrs B or Miss K for the impact of its shortcomings, or that it make any payments in this regard. The Council agreed with the investigation findings and recommendations. It said it was taking action with Miss K and her (recently appointed) advocate to rebuild a working relationship and to make sure that she is fully involved in decisions.
28. Mrs B did not agree with the investigation report or the Council’s response. She and Miss K asked the Council to refer the complaint to the independent panel as set out in the statutory guidance. However, rather than refer it to the Panel, the Council asked Mrs B for more information about her reasons for escalating the complaint. Mrs B gave detailed information of the parts she disagreed with, the flaws she saw in the investigation, and questions she felt were unanswered. The Council told Mrs B that the investigation report was made for its benefit and that it would not address her points itself or pass the complaint to the Panel. Instead it told her that she could complain to the Ombudsman.
29. This was fault by the Council. The investigation report is prepared by the independent investigating officer based on the complaint made by Mrs B on behalf of Miss K. Whilst Mrs B (or the Council) may disagree with parts of it, the report is not prepared just for the Council. It is to show an independent and robust investigation of the complaint, and so is for the benefit of all parties.
30. In refusing to pass the complaint on to the Panel, the Council said Mrs B had not given the Council reasons why it should do so. It said instead she had commented on the independent investigation report and it had not asked her to do this. The purpose of the Panel is to review the investigation and so in seeking a review, it was appropriate for Mrs B to comment on what she considered inaccuracies in the report, and inadequacies in the investigation.
31. The Council said that she had raised matters that were more than 12 months old and it was not obliged to address these, and that as Miss K was now looked after by adult services, she could not bring her complaint under the statutory children’s complaints process. However, the points Mrs B raised were all part of the investigation and as such I cannot see how the Council could say they were too old. The Council was also wrong to say that the complaints could not be considered as Miss K was by that time looked after by adult services. The complaints mainly related to the transition arrangements and these are rightly the remit of the statutory process. In addition, some complaints will include issues that do not fall into the process, but the Council should decide whether to use the statutory process or its general complaints process. In this case, the Council had already decided to use the statutory complaints process, and so it would be good practice for it to continue with this to the Panel stage.
32. I also note that in response to Mrs B’s request for the Panel stage, the Council found it had not mishandled some aspects, for example, providing benefits advice, when it had already accepted in response to the independent investigation that it had not provided the advice as required by the staying put agreement.
33. Overall, it was fault for the Council not to pass the complaint to be considered by the Review Panel in line with the statutory process. Mrs B was eligible to ask for this and the Council’s reasons are not sound. Mrs B questioned whether the investigation was adequate. I have some doubts that the investigation was adequate and that it always reached conclusions based on the evidence. The Council missed an opportunity to address this both when it responded to the investigation report, and when it refused to pass the complaint to the Panel.
34. I have summarised below the main findings of the independent panel, Mrs B’s criticisms and questions, and my assessment of the issues based on the evidence I have seen.

The Council’s planning for transition, staying put and shared lives

35. The Independent Investigating officer at stage two of the statutory complaints process found that the Council did not plan Miss K’s transition in good time. The officer concluded that the referral was far too late and so the plan was inadequate. They said this led to a ‘rather chaotic’ period in early 2019.
36. The staying put agreement says that plans for the financial contributions from the young person should be made 9 months before the 18th birthday. The independent investigation found that this did not happen, the Council did not properly inform Mrs B how the staying put arrangements would work and it did not give timely benefit advice.
37. Mrs B raised questions about some parts of the investigation report. However, these parts of Mrs B’s complaint have been properly addressed and upheld by the independent investigation. The Council accepted the investigation’s recommendations and there is no basis for me to investigate these parts of the complaints again.
38. The Council’s lack of forward planning and delay also meant that the shared lives agreement with Kent County Council was not in place in time. My understanding is that training is involved in moving to a shared lives arrangement and as such forward planning was especially vital. The independent investigation found that the Council was only partly responsible for the delay in putting the shared lives agreement in place because it had to wait for a safeguarding investigation to conclude, and because Mrs B was reluctant to sign this while the court of protection proceedings were ongoing. Later in the investigator’s report, when discussing shared lives payments, it says the delay in getting the agreement in place is due to delays by Mrs B. This does not appear to be balanced or fair, particularly as the investigator failed to interview officers from Kent County Council. Indeed, in my view the delay stems from the Council’s lack of planning in the transition arrangements as a whole.
39. The Council says it has improved its processes and referrals now happen before the young person’s 17th birthday. It has also reviewed its ‘staying put’ process and now work will be done with the young person, their advocate and carers so that arrangements are agreed ahead of their 18th birthday. Its new staying put policy that clearly outlines the support and entitlements.
40. The service improvements are important so that other families do not suffer. However, the investigation did not recommend the Council take any action to remedy the impact of the fault on Miss K and Mrs B make any personal remedy to them. In addition, the Council did not offer any remedy to them when it responded to the investigation report. Miss K and Mrs B suffered distress, frustration and confusion as a result of the poor transition planning and so I made some additional recommendations, and the Council has agreed to these. I have set these out below.

Issues around the relinquishment letter, appointeeship and the court of protection proceedings

41. The investigation found that the Council had not put Mrs B under duress to sign the relinquishment letter, and this was a normal process to protect Miss K and Mrs B. It also found that as Miss K has no mental capacity for finances it could not be said it was against her wishes for the Council to take court action, who, it said has acted to protect Miss K’s interests, and is fulfilling its duties to her.
42. Mrs B complained that the Council made her sign a letter relinquishing her responsibility to manage Miss K’s affairs. She is clear that she recognised she should not be managing Miss K’s money as she was now an adult, but that Miss K did not want the Council to be involved. Mrs B has questioned whether the Council completed a mental capacity assessment in February 2019; whether it made sure Miss K understood and consented to the court of protection action; and what it told the court about the financial arrangements.
43. I have seen the Council’s mental capacity assessment and it has explained that it was acting in Miss K’s best interests. However, I have not investigated these matters further because the court conducted its own mental capacity assessment and has decided that it would be in Miss K’s best interests to appoint an independent deputy to manage her affairs. In doing so, I consider that it also found the proceedings were appropriate to protect Miss K. I cannot investigate matters that have been considered by the court, and I have set this out in more detail at the end of this statement.

Financial arrangements for the holiday

44. Mrs B, Miss K and other members of the family were due to take a holiday together. However, by this time, Mrs B had signed the relinquishment letter, the Council had taken over as appointee for Miss K’s benefits, and had some money in her account. The fostering agency had transferred £2000 that it had been holding for Miss K but it was not yet in her account. Miss K had some savings that Mrs B had been looking after prior to the transition. In July, Mrs B asked the Council if she could use Miss K’s savings to pay for her holiday. The Council questioned what the money was being spent on and it was concerned that Miss K may effectively paying for other family members. It asked Mrs B for more details about the holiday and for receipts and invoices for expenditure. Mrs B explained that she could not give receipts for items not yet bought. She also made clear that Miss K was getting very anxious that unless the finances were sorted, she would not be able to go on the holiday as planned.
45. The correspondence between the Council and Mrs B shows that the Council understood that Mrs B would withdraw money to pay for Miss K’s contribution to the holiday from Miss K’s savings and would forward receipts when available. But Mrs B was not clear that she had permission to do this and despite seeking clarification, the Council only confirmed that this was acceptable the day before they were due to go on holiday.
46. The independent investigation concluded that the Council asked reasonable questions about a planned family holiday. It asked who had paid for taxis, flights etc for the five adults going on the family holiday as it had to be sure that Miss K’s income was not used to finance the holiday for other adults.
47. Although I agree the Council was asking reasonable questions to protect Miss K, there was fault by the Council here. This is because the confusion over whether Mrs B could access Miss K’s savings were a consequence of the delay in planning he transition, and the overall confusion and delay in finalising the financial arrangements. This put Mrs B to time and trouble, and caused distress to Miss K, who was unsure whether she could go on holiday.

Arrangements for Miss K to access her money while the Court of Protection action was ongoing

48. Mrs B complains the Council did not make Miss K’s money available to her despite her telling it what money was needed for Miss K’s day to day expenses. The Council says it tried on several occasions to establish a budget for Miss K and it had sent a prepaid card to Mrs B for Miss K to spend at the beginning of October 2020. The Council says it asked Mrs B how much should be credited to the card but she did not give details and so the Council credited £400 to the card four weekly starting at the end of November 2020. It asked Mrs B to give a statement of what the money was spent on and also asked if Miss K needed extra for Christmas. However, it says that Mrs B did not give it details. Miss K’s spending money is now dealt with by her independent deputy.
49. The independent investigation did not uphold this complaint and concluded that the Council was making £100 weekly available and that this has now been taken over by the court proceedings. The investigation here reached a conclusion based on the evidence it had. A different outcome would not have been likely even if the Council had passed this to the Review Panel. I also note that the Council agreed it would work with the court appointed deputy to rectify any errors on its part with regard to finances.

Money paid or due to Mrs B

50. Under the Staying Put agreement the Council agreed to make payments to Mrs B towards rent and bills for Miss K. She says the Council stopped payments from February to April 2019 and again from January to March 2021. The independent investigation found that this was due to a Council error and it then made up the missed payments. As it had been resolved the investigation did not uphold the complaint or make any recommendations about this. The Council in its written response to the investigation agreed with the investigation findings.
51. However, in my view, the investigation’s conclusion does not follow the evidence: there was fault by the Council because payments were missed. It acknowledges that historically, robust systems were not in place to have clear oversight and scrutiny of finances and that at times this led to inconsistent information and practice. It has now implemented more robust systems with a new access to resource panel that reviews financial spending. The panel has adult social care representation to strengthen the joint oversight.
52. It is likely that had the Council properly considered this or passed it to the Panel, then the complaint would have been upheld. Mrs B tells me that the Council told her in 2019 that payments had stopped because Miss K was 18 and had her own income. However, this was not the case and it was only through Mrs B’s efforts and through getting her MP involved that the payments resumed. Again, it seems that the missed payments in 2019 were a result of the poor planning of Miss K’s transition. The later missed payments appear to have been due to a system error.
53. Resolving these put Mrs B to unnecessary time and trouble, and caused her frustration. The Council says there are no outstanding payments due and has given me details of all the payments it has made to Mrs B so she can check that these are in line with the agreements.

The safeguarding investigation

54. Mrs B had discussed with a ‘shared lives’ worker that they needed to increase Miss K’s independence. They agreed that Miss K could sleep one night in a cabin, that was in the family’s gated garden, adjoining the main house. Miss K told college staff that she was sleeping in the shed, and the staff alerted the Council. The Council conducted a safeguarding investigation. Mrs B complained that this caused unnecessary distress to Miss K and the Council should have checked with her first.
55. The independent investigation found that the Council had checked with Miss K and as she also told it that she was sleeping in a shed, it was appropriate to refer this for a safeguarding investigation. I cannot criticise the Council for making the referral to protect Miss K, and to decide that to check with Mrs B before doing so was not appropriate. There was no fault when the Council referred this issue for a safeguarding investigation.
56. However, as part of the investigation, the Council visited Mrs B at home together with Social workers from the investigating authority, Kent County Council. Miss K was in another room in the house. Mrs B says that the Council’s social worker said that she could take Miss K from the placement immediately, and that Miss K, who had moved from the room she was playing in, overheard this. Mrs B says this caused Miss K significant and prolonged distress as she has been with the family from a very early age and would not want to be taken from them.
57. The independent investigation decided it could not reach a finding on this. It commented however that it would be a curious thing for a social worker to say as it is not the procedure, and that Mrs B should not have allowed K to overhear this. The Council agreed there could be no finding and added that it would not want to cause Miss K distress.
58. I have no reason to disbelieve Mrs B’s account, and even if the investigation could not make a finding, it is not appropriate for the investigation to find Mrs B responsible if Miss K overheard an inappropriate or unprofessional comment from a social worker. Mrs B told the Council that other social workers from another authority were present. I would expect the investigation to consider whether those others present could verify what was said, and the Council or the Panel could have legitimately sought this type of information as part of a review.
59. I have not investigated the actual incident because too much time has passed to for me to get accurate evidence from those present at the time. However, the Council’s mishandling of the complaints process has left Miss K and Mrs B uncertain as to whether their complaint about this might have been upheld.

Transport to college

60. Mrs B complained to the Council that it had not arranged for Miss K’s transport to college in line with her Education Health and Care Plan for the start of year in 2021. She says that as a result, Mss K missed four weeks of college. Mrs B also complains that the Council has not arranged college transport for 2021.
61. The investigation did not uphold this complaint. It found that the Council had tried to resolve the lack of transport by suggesting that Mrs B use Miss K’s motability car, or the Council commission a carer to use the car. Mrs B explained that neither solution would work as her and Mr B needed the car to transport other foster children to school. The Council then funded transport to college.
62. I have investigated this complaint further and seen the correspondence between the Council and Kent County Council. My understanding is that the London Borough of Newham will only fund transport in certain circumstances, and that Kent County Council is responsible for arranging that transport. I have not investigated the actions of the County Council and to my knowledge, Mrs B has not made a complaint to that Council. The London Borough of Newham’s files show that it agreed to fund the transport and in June 2021, applied to Kent County Council to arrange this. The County Council responded in August and The London Borough of Newham confirmed that it would pay for the transport. However, the County Council had no transport available and so there would be a delay in it starting.
63. The London Borough of Newham was trying to find a solution by suggesting that Mr or Mrs B, or a carer drive Miss K in her motability car, or that she take a taxi. The Council says it applied to the County Council for transport for the new academic year in June 2022.
64. It is very difficult that Miss K missed four weeks of college. However, based on the information I have so far, there was no fault by the Council. It made the application in good time, and when it was apparent that the County Council would not be able to provide transport it offered solutions, eventually providing transport itself until the County Council could do so.

Other matters

65. I have outlined the issues around the main parts of Mrs B’s complaints. The investigation considered other aspects but I have not investigated these. This includes that a bank account passbook went missing. I acknowledge that Mrs B was put to time and trouble to ensure the Council addressed this, but it did replace this and no money was missing. There is no merit in me investigating this, as the injustice caused is limited.
66. The Council also found that £2,000 belonging to Miss K was not showing in the accounts she held. My current understanding is that Mrs B says the Council accused her of misappropriating this and she found this distressing. It was soon found that the funds were with the fostering agency and the Council arranged for these to be transferred to Miss K’s accounts. I appreciate that Mrs B felt accused, but the Council was correct to establish what had happened, and so again the injustice was fairly limited.
67. Mrs B and the Council disagreed about how to handle respite care. Previously, Miss K would stay at home with other close family members that she felt safe and familiar with. Mrs B understood that the Council’s view was that this was not appropriate as Miss K needed to increase her independence. I understand that Miss K now has an advocate and my view here is that it is for the Council, Miss K, her advocate, and Mrs B to discuss and agree how respite care might be best provided and this is ongoing.

Summary

68. Overall there was fault by the Council. The independent investigation did not identify all the fault and did not address the impact on Mrs B and Miss K. The Council then was further at fault when it did not handle the complaint properly. The shortcomings caused distress and uncertainty to Miss K and Mrs B; it caused frustration to Mrs B and put her to unnecessary time and trouble to resolve matters. We must also acknowledge that actions will cause Miss K greater distress due to her disabilities, and that this will cause Mrs B additional distress as she supports and cares for Miss K.

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Agreed action

69. The Council has agreed to show the Ombudsman that within one month of the date of this decision, it has:
• Apologised to Mrs B and separately, to Miss K in an appropriate form;
• Paid Mrs B £150 and Miss K £300 in recognition of the distress caused them;
• Paid Mrs B £250 for the unnecessary time and trouble the Council put her to when it did not handle the complaint properly; and
• Shared this decision with relevant staff.
70. The Council has also agreed to show the Ombudsman that within three months of the date of this decision, it has:
• Reviewed how it operates the statutory complaints process and updated any internal guidance on this; and
• Trained the relevant staff particularly regarding the role of the review panel and when it should make referrals to it.

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Final decision

71. I have completed my investigation. There was fault by the Council causing Miss B an injustice.

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Parts of the complaint that I did not investigate

72. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
73. In this case, the court considered whether Miss K has capacity to manage her finances and whether she needs a deputy to manage aspects of her life on her behalf. The court arranged an independent mental capacity assessment and decided to appoint a deputy. I have not investigated whether the Council was correct to get involved in the court action on Miss K’s behalf, or whether it properly conducted a mental capacity assessment. These matters have been considered by the court.

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Investigator's decision on behalf of the Ombudsman