The Ombudsman's final decision:
Summary: Ms X complains that the Council has not provided a suitable remedy for the faults found in her children’s social care complaint about lack of background information on her adopted child. The Ombudsman finds that the Council did not provide a sufficient remedy to recognise the impact of the long period without the information she needs. The Council has now agreed a suitable remedy including taking steps to obtain the information, reviewing procedures and making a payment to Ms X.
- Ms X complains that the Council has failed to provide an adequate response to the findings and recommendations of the investigation into her complaint under the children’s social care complaints procedure. The complaint was about the way the Council dealt with background information about her adopted son and with adoption support. In particular she complained that the Council failed to respond properly to health concerns, failed to obtain relevant medical and social care records, and refused to provide financial support to help her move to suitable accommodation. She complains that the Council has not provided an adequate remedy to address the faults identified in the investigation.
- As a result she says the Council has still not obtained the background information she needs to support her son, she had to borrow large sums of money to finance her move, and the Council has not reviewed its practice as recommended.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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, sections 26(1), 26A(1), and 34(3), as amended)
- 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)
- 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)
- 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, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
How I considered this complaint
- I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy. I shared my draft decision with the Council and the complainant and considered their responses.
What I found
- The Adoption Agencies Regulations 2005 and the 'Statutory Guidance on Adoption' set out the adoption agency’s (in this case the Council’s) duties to gather information about the child and the child’s family to help it and the courts make decisions about the adoption, and prepare the prospective adopter.
- If the child is already a Looked After Child (LAC), in the care of the Council, there will have been a health assessment. The agency must consult its Medical Adviser about whether the health information in that report is sufficient or it needs to gather more.
- It must also gather information, as far as possible, about the birth parents’ family and health history and any other relevant information.
- This information is included in the Child Permanence Report (CPR) if the agency decides adoption is the best plan for the child.
- The Adoption Support Services Regulations 2005 and the 'Statutory Guidance on Adoption' set out the circumstances in which councils must pay financial support to people who adopt and where they have discretion to do so. The overall intention is to "ensure that the adoption of a child or the continuation of adoption arrangements should not be prevented because of lack of financial support".
- Councils can only pay financial support in certain circumstances. These include:
- where it is necessary to ensure the adoptive parent can look after the child;
- where the child needs special care and so needs extra expenses because of illness, disability, emotional or behavioural difficulties, or the continuing effects of past abuse or neglect;
- where the local authority has to make any special arrangements to help the adoption take place because:
- of the age or ethnic origin of the child; or
- it is desirable for the child to have the same adoptive parent as their brother or sister, or a child they lived with previously.
- When the Council approved Ms X as a prospective adoptive parent she explained that as a single parent and because of her accommodation she would prefer to adopt a child who did not have a disability. Ms X lives in a neighbouring county in the area of Council 2.
- The Council removed Child C from his mother’s care because of neglect and placed him with foster carers in February 2016. His initial health assessment in early March 2016 did not highlight any concerns about his health or development. He was then 15 months old.
- The Child Permanence Report noted that C “appears to be a healthy child” and that “there are no health concerns at present” and “no concerns from LAC medical”. It said while in the care of his mother he had not always had enough food or nutrition. His physical examination was normal. There was some developmental delay but he had caught up with his milestones and was improving.
- The Adoption Support Plan signed in early August 2016 did not identify any health needs. But it said if the needs change the adopter could seek advice from the post-adoption support team.
- C came to live with Ms X in September 2016. Shortly before this his Health Visitor noted that his “gross motor skills development requires monitoring and a possible referral to physiotherapy for assessment” if there was no improvement. Once C was placed with Ms X the Health Visitor noted she would review his gross motor skills in three months’ time. Ms X noticed that C tended to fall often and had an unusual gait when walking.
- The first Adoption Review meeting held in October 2016 was positive and found C was settling in well. The record notes that he had had a Child in Care Health Review in mid-September 2016. This found he was in good health, and his development was appropriate for his age. However he had been referred to a physiotherapist about his hips.
- Case records in January 2017 note a concern by Ms X’s Adoption Social Worker (ASW) about C’s walking and lack of balance. He was having medical tests. The notes say the Council previously thought any mobility issues were likely to be due to previous lack of stimulation while in the birth mother’s care. But now there were concerns about a possible underlying medical condition which needed further medical investigation. The Council’s Medical Adviser and a paediatrician became involved.
- In February 2017 Ms X told her ASW that C was still seeing the physiotherapist and had now received a medical diagnosis. Ms X explained that she had bought a house and prepared it so it would be suitable for her adopted child but she said C struggled with it because of the stairs. She provided information about her financial circumstances so the ASW could make a case for financial support.
- Over the following two months Ms X looked at properties that she felt would be more suitable for C. She provided information to the ASW about bungalows she had seen. She provided details about the difficulties C was having getting around her home. They looked at figures for the potential shortfall if Ms X were to sell her house and get a mortgage to buy a bungalow. They discussed whether she would need a lump sum or whether an Adoption Allowance would enable her to pay the extra mortgage. In an email to the ASW at the end of March 2017 Ms X said she thought the idea of an Adoption Allowance “is a very good one and it would allow me to get a large mortgage”. However she felt the amount needed was likely to be too high for the Council to approve. The ASW said she would make a request for a loan or grant and see what happens, but “the adoption allowance is separate”.
- The ASW put forward a request for financial support in mid-May 2017. She noted how well C was doing in Ms C’s care. But she said when C was placed with her his diagnosis was unknown. She said if it had been known he would not have been placed with her. This was because of the limitations of her accommodation and the demands of her job.
- Under the details of help requested she wrote:
- “Adoption Allowance until [C] reaches his 18th birthday”.
- “[Ms X] needs to move to more suitable accommodation because of [C’s] disability and an Adoption Allowance will assist with the extra costs involved.”
Complaint – failure to pick up on health issues before the child was placed with Ms X
- This was partially upheld on the basis that there were differing opinions about C’s health and mobility. Although health assessments did not highlight issues, the Health Visitor and nurse were raising a concern and saying it needed monitoring. The investigation found C’s needs “could have been identified earlier given concerns had been raised previously regarding [C’s] gross motor skills and there was no evidence that these issues were passed on to the paediatrician or health visitor”. It found that better co-ordination might have helped establish a clearer picture of C’s needs. However the Council’s view was that it was often difficult to predict the impact of parental neglect on a child’s later development. It said C’s needs were only starting to emerge when placed in Ms X’s care. It partially upheld the complaint.
Complaint – insufficient financial assistance with the move
- This complaint was not upheld. The Investigating Officer and the stage 3 Panel said the Council was not obliged to fund Ms X’s move. They considered the Council was generous in agreeing an Adoption Allowance up to the age of 18.
Complaint - that the Council had not provided Ms X with all the medical and social care background information she needed
- This complaint was upheld. The investigation found that as the Council had parental responsibility for C it should have followed up health issues raised. The Investigating Officer and the stage 3 Panel concluded that it was important for Ms X and the child to have as much background as possible. Although the Council had given Ms X all the information it had, it had not collated the information properly, had not obtained information from the birth mother’s medical and social care history despite her providing written consent, and had not included all relevant information in the Child Permanence Report. The Council accepted there was a clear requirement for health and social care histories of birth parents to be available to medical advisers and prospective adopters. The investigation found the issue remained unresolved as there was no evidence the Council had checked the birth father’s social care records or asked for the parents’ medical information.
- The investigation reports also commented on the inappropriate language in the Service Manager’s stage 1 response and said the Council should consider its wording more carefully in future.
- The recommendations arising from the investigation were:
- To obtain written permission from both birth parents to access their health and social care records.
- The Medical Advisor to review the information to carry out a ‘lessons learnt review’ to see if there could be better co-ordination between professionals involved.
- It apologised for the faults found, in particular in relation to the level of co-ordination and information-sharing about Y’s and his birth parents’ social care and medical records. It said it would feed back the issues to the appropriate service managers and relevant colleagues in the health service.
- It said it would ask staff to liaise with health colleagues to achieve a greater understanding of Y’s background. It said it would ask for social care and medical histories of the birth parents once it had written permission from both.
- It did not agree to any further financial support.
- She was concerned about the lack of progress in obtaining the birth parents’ medical and social care records, even though the mother had given written consent.
- She said C has been placed with her with a pre-existing condition and the professionals involved should have found this out.
- Regarding financial support she said she was aware there was no obligation on the Council to fund her move. But she felt it should do so in recompense for the failings identified in the complaint investigation. She said she had to borrow a large sum from her family to fund her move. At the stage 3 Review Panel hearing she said she had asked the Council for financial assistance with moving but instead it had granted her an Adoption Allowance until C turned 18. She said this would cost substantially more than the amount she had been asking for and said she had offered to give up the allowance if she could have this help. She said she had not received a reply. The Council representative at the hearing said he was not aware of this request.
- She also wanted a ‘lessons learned review’ as recommended.
Council’s response to the Ombudsman’s enquiries
- The Council confirmed the birth mother had agreed to disclose her medical records. It said the Council was “continuing to seek the release of the information to ensure any significant detail can be shared with the mother taking into account Data Protection restrictions.” It said it had not been able to contact the birth father so had not received consent from him.
- Following the draft decision on this complaint the Council said it had initially lost contact with the birth mother after she had given her consent and it did not have enough details to obtain further information. It has since taken steps to re-establish contact to discuss access to medical and social care records. It will also try and contact the birth father through her.
- Regarding collating the information it said it had not been able to agree to a worker from the Adoption Team to carry out this work as Ms X had wanted. But it had assigned it to a senior social worker in the Child in Care Team. It did not say what progress had been made.
- The Council said it did not consider it necessary to carry out a further review of lessons learned as it had agreed to take action to remedy the situation. It said key issues identified through the complaint had been shared with service managers to try to prevent similar problems occurring again in future. It had also provided them with copy of the investigation report.
Analysis – was there fault causing injustice?
- The Council has accepted that with better co-ordination and information-sharing about the concerns raised about Y’s mobility, it might have been able to get a clearer picture of his needs. But I do not consider there is sufficient evidence to be able to conclude that this would have established C had an underlying medical condition, or what the prognosis would be, before he was matched with Ms X. Initially the Council thought any problems were related to the history of neglect and C’s living environment. The medical examinations did not identify any underlying condition. Although there were concerns raised just before C came to live with Ms X, referrals followed promptly and the extent of the problems emerged as C grew and developed. With better co-ordination the Council might have been able to identify a potential problem with mobility earlier, but I cannot say it would have known the nature or extent of it by then. Nor could I conclude it would have affected the decision to place C with Ms X.
- But given the concerns raised, the signs of problems seen, and the medical investigations that were taking place, it was all the more important for those involved with C, including Ms X, to have as much information as possible about the parental medical and social care background. It is a requirement in law, statutory guidance and the Council’s policies to provide this information. The Council was at fault in failing to obtain all the necessary information. Despite its commitment following the complaint to obtain and co-ordinate the information, I have not seen any evidence that it has made any progress, let alone completed the work. This is causing Ms X continuing frustration and anxiety at not being able to support her child as best she can. She is left not knowing whether the records hold information that would help identify a diagnosis for him or provide him with suitable care.
- Regarding post-adoption support, it is not for the Ombudsman to say how much financial assistance the Council should provide. I need to look at whether there was fault in the way it reached its decision. I have not seen evidence that it failed to consider the request for financial support properly. The records show the request for financial support the ASW put forward was for an Adoption Allowance up to the age of 18 rather than a lump sum to help with the move. I have not seen evidence that Ms X later offered to forego the allowance in favour of a lump sum to help with the move.
- Ms X is aware that the Council was not obliged to fund her move. My view is there is nothing in principle or anything specific in law or the statutory guidance to prevent a council providing funds to assist with a move, although it is not required to do so. It would be a matter of discretion for the Council as to whether it considered it necessary to support the adoption. But Ms X’s request in her complaint is for a payment towards the cost of the move as a way of recognising the failings identified through the complaint investigation. As I cannot say that without these failings it would have resulted in a different decision about the placement and so avoided the need to move, I do not consider it appropriate to recommend a payment to cover the money Ms X had to borrow to allow her to move.
- However in my view it is appropriate to recommend a payment to recognise the impact of the continuing lack of information. Ms X has had more than two and a half years of uncertainty, anxiety and frustration at not having access to information needed to support her child. If, once she has seen the birth parents’ records, she finds relevant information that should have been shared with her before C was placed with her, it would be open to her to make a further complaint to the Ombudsman. We would then be able to consider whether there was any additional impact that should be recognised by a further remedy.
- In response to the Ombudsman’s recommendations the Council has agreed to take the following action for a period of six months following the final decision on this complaint:
- take all reasonable steps to obtain consent and access to health and social care records for both the birth mother and birth father;
- keep Ms X suitably updated;
- give Ms X a named person to contact in case of queries about progress.
- complete the work of co-ordinating all the medical information; and
- share the medical and social care information with Ms X and relevant professionals involved in the care and medical treatment of C, as appropriate, taking account of data protection considerations.
- pay Ms X £1,000 to recognise the anxiety, frustration and distress caused by its failure to provide the information she is entitled to concerning the birth parents’ health and social care background over a period of more than two and a half years.
- I have found that there was fault by the Council causing an injustice to Ms X in the way it dealt with the background information about her adopted child. I am satisfied with the action the Council has agreed to take to remedy the injustice and so I have completed my investigation.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman