Derbyshire County Council (16 015 352)

Category : Children's care services > Adoption

Decision : Upheld

Decision date : 15 Nov 2018

The Ombudsman's final decision:

Summary: Mrs C says the Council failed to communicate and work with her while it arranged foster placements for her estranged son and that it failed to investigate her complaint about these matters properly. On the evidence so far seen, the Council was at fault for unacceptable delay in the complaints process but was not otherwise at fault. The Council should pay her £250 and apologise.

The complaint

  1. Mrs C complains about the Council’s actions around the time when her adoptive son was taken into care. She says the Council:
      1. Communicated with her poorly;
      2. Reached incorrect decisions based on incorrect facts in responding to her complaints;
      3. Failed to work with her to reach the best outcome for her son; and
      4. Failed to live up to its values throughout.
  2. She says she would like the Council to repay the legal fees she incurred during the period in question.

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The Ombudsman’s role and powers

  1. 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. The injustice must be caused by the fault found. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one brought more than a year after the alleged fault complained of. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, we 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.
  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)

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How I considered this complaint

  1. I spoke to Mrs C. I made enquiries of the Council. I considered the evidence alongside the relevant law and guidance.
  2. I decided to use the Ombudsman’s discretion to investigate back to May 2016. This was because it was the Council’s delay in completing its internal complaints procedure that led to Mrs C coming to the Ombudsman two years after the original incident.
  3. I sent a copy of my draft to Mrs C and to the Council and invited their comments.

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What I found

  1. Councils’ duties towards children are set out in the Children Act 1989. Councils have the power to place children in foster placements where necessary.

Fraser guidelines

  1. In his judgment in Gillick v West Norfolk and Wisbech Area Health Authority, [1985] UKHL7, Lord Fraser said; ‘whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent’.
  2. In his judgment in the same case, Lord Scarman said; ‘Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision’. When a child is capable of making up his mind, this is known as ‘Fraser competence’ or Gillick competence’.

Mental Capacity Act 2005

  1. The Act states that all adults (defined as 16 or over) must be considered to have capacity to make a decision unless it has been shown otherwise. A person must be deemed capable of making a decision unless all reasonable steps have been taken to help him make it without success.

The statutory complaints procedure

  1. The Children Act stipulates that there should be a special complaints procedure for children’s services complaints. This procedure is set out in the Department for Education guidance, Getting the Best from Complaints.
  2. The guidance states that the procedure does not apply if a child who is Fraser competent does not consent to a complaint being brought on their behalf. They can, however, complain about their own treatment by the council, but this complaint need not be considered under the statutory three-stage process.
  3. The guidance sets out a three-stage complaint process:
      1. Stage One: Local resolution. This should take ten days (with a further ten days in complex cases). The expectation is that most complaints will be resolved at this stage.
      2. Stage Two: Investigation. This stage starts when the complainant requests it. It should take 25 days. This can be extended to a maximum of 65 days. The investigation should be conducted by an investigating officer and an independent person. The independent person should accompany the investigating officer throughout the investigation. A senior officer should then act as adjudication officer and give the council’s decision.
      3. Stage Three: Review Panel. The complainant has 20 days to request a stage three review. The council has 30 days to convene and hold the panel. The panel has 5 days to consider its finding and the council then has 15 days to respond to its findings. The panel should consist of three independent people. It should hear from all parties, consider the adequacy of the stage 2 investigation, find any further information that may help resolve the complaint and reach findings and make recommendations.
  4. Where the complaints process is running concurrently with other procedures, such as court proceedings, the Council has a discretion to suspend the complaints procedure.

What happened

Background

  1. Mr and Mrs C have lived in the Council’s area for some years. When they arrived, they contacted the Council’s social services department asking for help with their adopted children. Including adoptive son, X, who has developmental problems.
  2. In 2016, Mr and Mrs C’s relationship with X, who was 15, deteriorated. Mr and Mrs C told the Council their relationship with X had become impossible. They asked the Council to find a permanent foster placement for X. Mr and Mrs C retained parental responsibility. They asked the Council to start care proceedings.
  3. After three weeks, social workers took X to a foster placement in another county. It was intended to be long-term. However, after a month, it broke down and X was sent to another placement in a neighbouring council’s area.
  4. Mrs C met Officer O, the head of the Council’s children’s services department for the first time in early May 2016. She expressed her dissatisfaction with the way the Council was handling the matter.
  5. Mrs C also engaged solicitors. Her solicitor wrote to the Council in mid-May. The Council responded saying that X would receive psychological support, would be able to keep a link to a leisure facility which he enjoyed.

Internal complaints procedure

  1. Mrs C sent an email to Officer O, a senior complaints officer at the Council, on 5 May 2016. She said that, since X had left, communication by the Council had been ‘extremely poor’ and had left Mr C and she feeling they were ‘the abusers’;
  2. She said the current foster placement, which was intended to be long-term, was outside the area and left X without therapeutic support and a school place. She said it had been ‘very negative’.
  3. Officer O phoned Mrs C on 6 June 2016 and discussed her complaint. On 14 June 2016, Officer O sent Mrs C a stage one response in which she said:
    • Communication and working together: Officer O had told Mrs C on the phone she wanted this to improve as Mrs C was integral to long-term planning for X. The Council had appointed a new social worker who was extremely stretched but who had visited Mrs C at home.
    • Placement planning and concerns about current placement: The current placement was found at short notice because the previous planned placement, also found at short notice, had fallen through. This was not ideal but was providing a safe environment for X while the Council sought a suitable, long-term placement. It had never been intended to be long-term so introductions did not take place. The Council should have met with Mrs C sooner to update the accommodation paperwork. She apologised.

      Meanwhile, X had been discussed at the Council’s Placement Matching Panel and been accepted onto the contract care fostering scheme.
    • Education: It was unfortunate X had not been in school since leaving home but the first placement, where he had a school place, fell through. He had been receiving two hours tuition a day and being supported by the Council’s ‘Virtual School’ team. School would be arranged at a permanent placement.
    • Therapeutic support: As with school, therapeutic support could not be provided until a long-term placement was in place.
    • Care proceedings: Mrs C wanted care proceedings. This would not be normal for a child of X’s age so the Council was investigating whether the threshold for proceedings was met. The Council agreed that X should remain in Council care and would benefit from a long-term placement.
  4. Mrs C emailed the Council on 19 June and wrote a letter on 22 June, saying she wanted to escalate to Stage 2. Her main heads of complaint were:
    • Communication: Poor communication with the Council and no communication with the foster carer.
    • Care planning: X was not receiving psychological support or leisure activities. X was in a key year at school and needed education. He was isolated. The Council should have been trying harder to find a suitable one for X.
  5. On 28 June, the Council’s legal department told Mrs C it had not issued care proceedings because it did not consider it to be necessary because there was no dispute between Mr and Mrs C and the Council.
  6. Mrs C wrote back to the Council to object. She said the Council was not complying with its own guidance because:
    • X was not being kept healthy – There had been no review and there was no therapeutic support in place. He also needed dental care;
    • he was not being protected from neglect nor given proper support;
    • The Council had not listened to her wishes, made a care plan, worked in partnership with her or carried out a ‘looked after review’.
    • She had not received any paperwork in respect to X’s current placement.
  7. In October 2016, Officer Q, a senior Council officer, wrote to Mrs C to say she would not escalate the complaint to stage two because the Council was about to begin care proceedings. Therefore, she had decided to put the complaint on hold.
  8. Mrs C complained to the Ombudsman in November 2016. The Ombudsman responded in January saying we would not investigate her complaint because she had completed the internal complaints procedure and X had not consented to her being his representative.
  9. In late January 2017, Mrs C wrote again to the Ombudsman. She accepted that she could not complain on X’s behalf. However, she said, she wished to continue on her and Mr C’s behalf.
  10. She complained about:
  • Complaint procedure: There had been delays. She did not accept that the process should be suspended because care proceedings were ongoing. ‘One is not exclusive of the other’ she said.
  • Insufficient service: The Council’s failure to provide therapeutic support to X had affected her as a parent as had the delay in providing education and leisure activities for him. They had a legal responsibility to do the best for him. The Council had also promised to provide services then failed to do so.
  • Communication: There had been poor communication from the children’s services department. Some social workers were rude. They were not informed of meetings. No one apologised. Minutes and other documents had been inaccurate. She was not kept informed of placements and other developments.
  • Lack of working together and values and ethics: Mrs C said that, while she accepted that all councils were operating within severe financial constraints, this was not an excuse.
  1. By June 2017, X had turned 16. Officer Q wrote to Mrs C saying X had refused his consent for Mrs C to be his representative. She said the stage two investigation would only investigate the following:
    • Council communications with Mrs C;
    • How the Council included Mr and Mrs C in decisions about X;
    • How the Council kept Mr and Mrs C informed about X’s progress;
    • How they were included in the review process and the accuracy of minutes;
    • Whether a Council officer breached Mr and Mrs C’s and X’s privacy; and
    • Whether the Council had portrayed Mr and Mrs C as ‘abusers’ of X.
  2. Mrs C received the report from the stage two in early November 2017. It said:
    • Communications: There were some failures. Complaint partially upheld.
    • Working with the parents: This could have been better but this would not have made have made any difference. Complaint partially upheld
    • Sharing information about X: Not upheld.
    • Involvement in the children in care process: Not upheld.
    • Breach of privacy by council officer: Insufficient evidence. Unresolved
    • Mr and Mrs C portrayed as ‘abusers’: No evidence. Not upheld.
  3. The investigating officer recommended, among other things, that:
    • The Service Director Safeguarding and Early Help should remind staff to follow procedures regarding section 20 accommodation agreements
    • The Head of Service, Quality, Performance and Partnerships should remind all staff of the need to respond to complaints in a timely fashion.
  4. On 8 December 2017, the Council’s adjudication officer wrote to Mrs C. She accepted the findings in the report. She apologised for failures in communication.
  5. Mrs C did not accept the findings. She asked for a stage three review. This was held in February 2018. After a one day hearing, the panel upheld the stage two findings. It found no evidence to justify overturning any of its findings.

Was there fault causing injustice?

Delay

  1. The Council did not have to use the statutory complaints procedure to deal with Mrs C’s complaint. Having decided to do so, however, it should have completed the process to the prescribed timetable.
  2. Some of the delay was caused by the concurrent care proceedings. The Council decided, as it was entitled to do, to delay the complaint while the case continued. Mrs C says the Council should have conducted both concurrently but the guidance is clear that it was entitled to decide as it did.
  3. However, there was also delay not caused by the court proceedings. Mrs C should have had a response to her initial complaint within 20 days at most. In fact, it took 37 days.
  4. Mrs C escalated to Stage 2 immediately. She should have had her investigation within 65 days. In fact, this was not complete until 1 November 2017, 17 months later. The care proceedings took only five of those months.
  5. Mrs C asked for a review as soon as she received the adjudication letter. The panel should have met within 30 days. Christmas fell in this period which would have caused delay. Nonetheless, the panel did not convene until 5 February 2018, two months later.
  6. In total, the complaint took 21 months. This delay was fault.

Ombudsman’s policy

  1. Where a council has completed a three-stage complaints procedure, the Ombudsman’s policy is not to reinvestigate the complaint but, rather, to consider whether the investigation was flawed. I have seen no evidence that it was. Mrs C does not agree with the results but that is not a reason to find fault.

Independent person

  1. Mrs C complains that the independent person was not sufficiently involved in the investigation. She says that she never met her as she did not accompany the investigating officer to her interview with Mr and Mrs C.
  2. While this would have been fault, had the Council been required to follow the statutory complaints procedure, I do not find that it was fault in this case.
  3. This is because the Council was not required to follow the statutory complaints procedure because Mrs C was not complaining on X’s behalf.
  4. By the time of the stage 2 investigation, X had turned 16. He was, therefore, to be treated as an adult in terms of his mental capacity (though not in relation to his care). He had refused permission for Mrs C to complain on his behalf. There was, under the Mental Capacity Act 2005, no reason to suppose that this refusal was invalid.
  5. That being the case, Mrs C was not complaining on X’s behalf. Therefore, there was no need for the Council to use the statutory complaints procedure. It should have dealt with Mrs C’s complaint under its corporate complaints procedure.
  6. That being the case, this complaints process was far more thorough than the law required and I cannot find fault with the Council for a failure to follow a procedure which did not apply.

X’s competence

  1. Mrs C says the Council was wrong to find X was ‘Fraser competent’. I do not agree. Mrs C engaged an expert who found X did not have capacity to make decisions on his own behalf. But the Council reached a different conclusion.
  2. This decision is a matter of professional judgment and, therefore, not one with which the Council can interfere. The records show X made decisions about many subjects. He attended a mainstream school. He was born in February 2001 and was, therefore,15 years old at the time in question. It would be rare for someone like this to be found to lack competence to make decisions on his own behalf. I do not uphold this part of the complaint.
  3. In any event, as stated above, X was 16 when the stage 2 investigation took place so the issue of Fraser competence is irrelevant.

X’s consent

  1. The Council did not investigate matters relating to X as he had refused his consent for Mrs C to complain on his behalf. This was the correct decision.
  2. Mrs C tells the Ombudsman she suffered injustice because X suffered injustice. However, I cannot look at this part of her complaint because
      1. The Council excluded this part of her complaint from its investigation here is, therefore, no decision for me to review;
      2. X refused her permission to complain on his behalf.

The complaints procedure

  1. Overall, Mrs C finds fault with the complaints process because she does not like its conclusion. This is not a ground upon which we can find fault.
  2. Mrs C says the stage two report was inaccurate. I cannot know whose version of events is correct. The investigation appears thorough and fair and, apart from the delay, in accordance with the guidance.
  3. Mr and Mrs C feel that they were disrespected and treated as ‘abusers’ in the process. I have seen no evidence to support this view. Council officers said they believed they wanted the best for X.
  4. Mrs C finds fault with the Council’s adjudication letter and the stage three review. But her criticism is, again, essentially, that it reached the wrong result. Again, we cannot find fault on that basis.

Conclusion

  1. The Council was at fault for delay in complaints handing but, the complaint was handled fairly. It apologised for any fault found.

Remedy

  1. Mrs C wants the Ombudsman to ask the Council to pay her £5,000 legal fees, which she says she incurred because of Council fault.
  2. I cannot make this recommendation. Mrs X engaged a solicitor to try to influence the Council’s actions impacting on X. X refused to authorise Mrs C to complain on his behalf so issues relating to him were not considered in the complaint so the fees do not arise from the fault I have found.
  3. If any legal expenses did relate to the internal complaints procedure, I still would not recommend the Council should reimburse them. The Ombudsman only recommends councils reimburse legal fees in exceptional circumstances. I do not believe that this case would justify such a recommendation.

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Agreed action

  1. Within two weeks of the date of this decision, the Council should:
      1. Apologise to Mr and Mrs C for the delay; and
      2. Pay them £250 in recognition of the time and trouble caused by it.

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Final decision

  1. I have decided the Council was at fault for delay but otherwise acted in accordance with its duties. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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