Summary: The complainant alleges that the Council misled him and his wife about the possibility of future medical difficulties for a child, whom they had expressed an interest in adopting, prior to them agreeing the placement. The child was subsequently diagnosed with significant difficulties. The Ombudsman agreed to accept the complaint even though the Council had not considered the complaint at the final stage of the statutory complaint procedure. The Ombudsman finds fault causing injustice in the way the Council has managed the adoption and complaint processes. The Council has agreed the Ombudsman’s findings and recommendations and therefore we are closing the complaint.

The complaint

1. The complainant, who I refer to as Mr X, complains about the lack of accurate information provided to him and his wife prior to them agreeing to the placement of a young child with them with a view to adoption. I shall refer to the child as Child B.
2. Since the adoption, Mr X discovered that they were wrongly told that Child B had been tested for Foetal Alcohol Syndrome Disorder (FASD) and this had proved negative. Subsequently, Child B was diagnosed with this condition. Her difficulties are severe. Mr X says it is unlikely that they would have agreed to the placement had they not been wrongly informed.
3. Mr X says that the negative impact of the Council’s errors has been significant, and they have struggled to obtain appropriate support for Child B. They say that their eldest daughter left the family home prematurely because of Child B’s behaviours.
4. The Council has investigated Mr X’s complaint up to Stage 2 of the statutory complaints’ procedure. Although the Council upheld many of the complaints, Mr X says that it has not fully agreed to the recommendations and it has not accepted the main fault identified; that they were wrongly informed prior to the placement of Child B.
5. Mr X also complains about the excessive delays by the Council in dealing with his complaints.

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The Ombudsman’s role and powers

6. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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))
7. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
8. Where there is a complaint about negligence by a council, the Ombudsman will not pursue this because he would expect complainants to pursue such claims through the courts.
9. 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

10. I have considered the complaint papers provided by the Council and I have spoken to the Council’s Complaints Officer. I have spoken to Mr X on the telephone and considered his comments.
11. There is a comprehensive Stage 2 report. The Ombudsman will not normally re-investigate the complaint if he is satisfied the Stage 2 report has properly considered the complaints. However, he will consider whether the Council has properly considered the findings and recommendations of the Stage 2 report and will consider whether the complainant has received an appropriate remedy for the injustice caused by the identified faults.
12. I issued two draft decision statements to the Council and complainant. I have taken into account their additional comments when reaching my final decision.
13. Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Legal and administrative

14. If there is evidence a child is suffering significant harm, the Family Proceedings Court can make a Care and Placement Order. A Placement Order gives the Council the power to place a child with prospective adoptive parents. The Council retains parental responsibility until an Adoption Order is made.
15. The Adoption and Children Act 2002 and accompanying Guidance 2013, the Adoption Agencies Regulations and the National Minimum Adoption Standards sets out a range of duties on adoption agencies.
16. The council should give prospective adopters help to understand the child’s background before they agree the match can be passed to the Adoption Panel for consideration. There should be a detailed Child Permanence Report (CPR), detailing the child’s background.
17. The Adoption Panel is a multi-agency forum which make recommendations to the council about the suitability of a match. The council’s agency decision maker must either accept, or not, the recommendation.
18. Prospective adopters, once approved, normally complete a form, indicating the type of child difficulties which they feel they could not manage. For example, a child at risk of developing FASD or who had been assessed as having this condition.
19. The Guidance states that it is “unacceptable for agencies to withhold information”. The agency should record the prospective adopters’ views about the proposed placement.
20. It is considered good practice for the medical adviser of the Adoption Panel to meet the prospective adopters to share all appropriate health information, to discuss the needs of the child and to provide a written record of the meeting.
21. The adoption agency should prepare a plan of the support to be provided. Financial support (subject to means testing) can be provided where there is some particular condition relating to the child’s health or circumstances making it hard to place the child for adoption.
22. Once the match has been approved, councils often arrange a Life Appreciation Day or a Life History Day, which the prospective adopters attend. This enables the council to ensure that prospective adopters have all the relevant information before they proceed with the child being placed with them. Prospective adopters can also ask questions.
23. After this, a council will check the prospective adopters still want to proceed and, if so, the child will be placed with the prospective adopters.

The Statutory Children Act 1989 complaints process

24. The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the Council. A council has to investigate the complaint subject to certain restrictions.
25. The guidance Getting the Best from Complaints 2006 provides detailed advice on how councils should conduct investigations.
26. There are three stages to the statutory social services complaints’ procedure. The first stage allows an informal resolution of the complaint. A council has 10 days to respond. If dissatisfied, the complainant is entitled to an independent investigation. The Council may also appoint an independent person to oversee the investigation. The investigation should be completed within 65 days.
27. At the final stage, a Stage 3 Complaints Review Panel can consider the complaint. The purpose of a Complaints Review Panel is, among other things, to consider the adequacy of the Stage 2 report, focus on achieving resolution by addressing the complaints and desired outcomes and reaching findings on complaints which are being reviewed. The complainant must ask for a Review Panel within 20 days of the Council’s adjudication letter. A council has 30 days to set up a Panel.
28. Paragraph 3.12 of the guidance says the Complaints Review Panel “must set out its recommendations to the council on any strategies that can assist in resolving the complaint. These may include financial compensation or other action within a specified framework to promote resolution”.
29. The Complaints Review Panel will send its findings and recommendations to the Director of Children Services for consideration. It is then for the Council to decide whether to accept the Review Panel’s recommendations.
30. If, after receiving the Council’s final response, the complainant remains dissatisfied, he/she can submit a complaint to the Ombudsman.
31. Annex 3 of the complaints’ guidance describes the circumstances in which a council can make an early referral to the Ombudsman. This can only happen if there has been a robust stage 2 report, the complaints have all been upheld and the majority of the complainant’s desired outcomes have been met.
32. In March 2015, the Ombudsman issued a Focus Report about children’s social care complaints. He found that a common problem was a refusal by councils to allow complainants to go through all stages of the statutory complaints’ procedure. The Ombudsman also said that the complaints process must be adhered to.

Background facts

33. In 2010 Mr X and his wife had been approved as prospective adopters by another neighbouring council (Council Y). Council Y and the Council are now part of an adoption consortium.
34. Mr X says they took advice from their adoption social worker from Council Y, when they came to fill in the form concerning what kind of difficulties which they might be unable to cope with. Mr X says that they indicated that they may not be able to manage a child with FASD, or potential FASD, because they had an older child to consider. The adoption social worker had explained to Mr X and his wife that, children with FASD can have significant difficulties, which another child in the family may find difficult to cope with.
35. The Stage 2 report stated that Mr X and his wife had indicated that they would discuss the possible placement of a child at risk of FASD and, after discussion, would make an informed choice.
36. Mr X says that he and his wife were asked to consider two possible children, available for adoption, but both of whom had possible FASD. Mr X says that they felt these placements were not appropriate and declined to proceed. Mr X considers that this is evidence of their reluctance to take on a child with possible FASD.
37. Child B was known to have some medical problems. At a Life History meeting it was recorded, in the minutes, that Child B had been tested for FASD, but this had proved negative. However, there is no reference to this test in the other documents, like the Adoption medical report or the Child’s Permanence Report (CPR).
38. After this meeting, Mr X and his wife agreed to Child B being placed with them for adoption. The next year they obtained an Adoption Order.
39. Subsequently, Child B was referred to a specialist agency for being “acutely distressed in the context of early related traumas, FASD and serious illness in infancy”. It was subsequently confirmed by a Consultant Paediatrician that Child B suffered from ‘Alcohol related neurodevelopment disorder’, among other difficulties. The parents were directed to the FASD website and Child B received individual therapy as a result.
40. In the Stage 2 report, the explanation for the wrong information about the negative FASD test being given at the Life History meeting was that the social worker may have been referring to Child B’s older sibling who may have been tested.
41. Mr X says that the Council’s misinformation has caused enormous strain on the family and he says that his older daughter left the family home, prematurely, because of Child B’s difficult behaviours. Moreover, having been told that Child B had tested negative for FASD, this subsequently delayed appropriate interventions being provided for this condition because they were working on the basis that FASD had been excluded.
42. Mr X says that they remain very committed to Child B and the placement is secure. But had they not been reassured that Child B had had a negative FASD test, it is very unlikely they would have proceeded with the placement.
43. Mr X considers the Council deliberately misled him and his wife and that the Council knew, at the time that they agreed for Child B to be placed with them, that there would be subsequent problems with Child B’s behaviours. Moreover, the Council knew about the birth mother’s heavy drinking during pregnancy and had had concerns about this with her older children, who were also removed from her care.
44. Mr X says that the Council delayed in allowing him to see Child B’s records. When he finally saw them, he learnt more about the birth mother’s history and that her excessive drinking was a known fact. Mr X also discovered that the medical advisor of the Adoption Panel had asked for an update on the birth mother’s history during pregnancy. However, this had not been provided to the medical advisor. Therefore, the advisor could not fulfil his role in advising Mr X and his wife, prior to the placement, about the possible implications of the family history and Child B’s potential difficulties in future.
45. Mr X also complains about the excessive delays in dealing with his complaints. He considers the Council has been obstructive and has not wanted Mr X to find out the full accurate history of its involvement. He first complained in September 2017 and received the inadequate Stage 1 response in October.
46. After meetings with Council officers, Mr X asked for a Stage 2 investigation in February 2018. The Council did not commission this until January 2019.
47. The Stage 2 investigation was completed in June 2019.

The Council’s Stage 2 investigation of June 2019

48. There has been a thorough investigation. Broadly, and in summary, the following findings were made (I paraphrase):
1. that the complainants had wrongly been told a FASD test had been completed and was negative. But there was no finding that the Council deliberately misled Mr X and his wife;
2. that there was evidence that the birth mother had problems with her alcohol intake and that this continued during her pregnancy. The Council also failed to chase up information from the health professionals about the birth mother’s drinking during the pregnancy. The information given to Mr X was partial and therefore misleading. The Council had also failed to effectively gather key information and share it with Mr X and his wife prior to Child B’s placement. But the Stage 2 investigator could not say this was a deliberate act by the Council;
3. that there was evidence of the medical advisor requesting more information about the birth mother’s alcohol intake during her pregnancy, but this information was not provided
4. that there was no evidence that Mr X had been misled about the reasons for Child B coming into care. He was correctly told that the birth mother had agreed to Child B being placed in foster care at two days old;
5. that, as a result of the negative FASD test, this meant the possibility for FASD was ruled out initially and delayed making an accurate diagnosis of Child B’s problems;
6. the Stage 1 response was inadequate and excluded vital information about the information provided at the Life History meeting;
7. that there were excessive delays in the complaints process. Having requested a Stage 2 investigation in February 2018, it was not until January 2019 that this was arranged.

Recommendations at Stage 2

49. The Stage 2 investigator recommended that the Council should:
• admit to its failings as identified and issue a full and frank apology to Mr X and his wife,
• ensure that, in future, all relevant information is shared properly with prospective adopters;
• improve its complaint process to avoid excessive delays and inadequate responses.

The request for a Stage 3 Review Panel

50. Mr X asked for a Stage 3 Complaints Review Panel because, although satisfied with the Stage 2 report, he felt the Council’s subsequent response was not adequate.
51. The Council felt that a Stage 3 Panel would not achieve anything for the complainant and the Council had implemented an appropriate action plan in response. Mr X remained dissatisfied with this response.
52. The Council asked the Ombudsman to accept this complaint, without it going through Stage 3. The Ombudsman has now agreed for the complaint to be referred so that we could consider the matter.
53. Mr X has told the Ombudsman that he does not consider the Council has taken on board properly the findings of the Stage 2 report and that it continues to blame Council Y for what happened. It has not accepted fault and apologised in the way recommended.
54. Mr X considers also that the Council has not recognised the adverse impact on his family by the Council’s errors which he says lead to his older daughter leaving the family home.
55. Mr X wants the Council to:

“admit their failings and issue a full and frank apology and admit what they did was wrong. 2. Demonstrate how they reflected on this to arrive at an action plan to redress this. 3. Demonstrate how the action plan will be reviewed to ensure the failings do not reoccur. 4. Stop trying to delay communications and make constructive dialogue difficult in the hope I will go away and they will not have to deal with this. 5. Put recovery measures in place where possible - it is not sufficient to say [Child B] is having therapy currently, this is for historical trauma and not to understand or address future needs”

56. The Council has explained to the Ombudsman how the adoption service has improved since 2010 and produced an ‘action plan’ in late 2019 to improve future adoption services.
57. Mr X remains dissatisfied. He says that the Council has deliberately deceived them about Child B’s potential difficulties. He does not consider the Council has provided a ‘full and frank apology’ as recommended.

Analysis

58. Councils must tell prospective adopters about the birth family’s full history and of any medical concerns known at the time about the child or birth parents. However, unforeseen difficulties can arise subsequently which a council may not have been able to predict or known about at the time of the child’s placement.
59. I accept the findings of fault in the Stage 2 investigation. There is evidence of the Council not gathering full information about the birth mother and then also providing partial information to the complainant. However, the Council says that its practices have been improved in trying to obtain information from the birth mother in respect of alcohol use.
60. Mr X and his wife were also misled by the wrong information concerning a negative FASD test. And their concern about having a child with FASD, or the likelihood of FASD, was a known fact to the Council at the time of the placement. That information should have been at the forefront of the Council’s mind when making its decisions about the best adoptive match for Child B and Mr X and his family.
61. The Council’s actions here amount to fault. But I cannot say the Council has acted negligently or deliberately because this is a matter for a Court to determine.
62. There have also been excessive delays in dealing with Mr X’s complaints, first made in September 2017, and the Stage 1 response failed to refer to vital but known information about the information provided at the Life History meeting. That gives a poor impression of the Council and it has meant that Mr X has had to be persistent in pursuing his complaint in the face of what he saw as the Council trying to ignore key and known information about the negative FASD test.
63. The Stage 2 independent investigation was not commissioned until January 2019. I also find that the Council was at fault for not allowing the request for a Complaints Review Panel. Mr X was entitled to this and it is not for the Council to second guess whether a Panel could, or not, achieve the outcomes which Mr X was seeking. In total, the Council took nearly two years to consider Mr X’s complaints, well over the statutory timescales.
64. The Council says that, in future, it will ensure requests for a Stage 3 Review Panel will be handled in accordance with the complaint guidance.

Injustice

65. The identified faults have caused injustice to the family in that they have resulted in avoidable distress, frustration and time and trouble. Mr X says that they would not have adopted Child B had they known the full facts. However, despite this, Child B is very much a part of the family now. But the Council should bear in mind that its faults could have led to a breakdown of the placement.
66. Being told that there had been a negative FASD test would also rule this out as an explanation for Child B’s difficulties and it would take longer to make this subsequent diagnosis as a result.
67. The nature and duration of the resulting injustice, and the fact that its impact is on the whole family, rather than just one individual, are all factors that require us to look beyond the modest, standard amounts suggested as a starting point in our Guidance on Remedies.
68. I can also see that Child B’s behaviours would have had a significant adverse impact on the couple’s older child although it is not possible to conclude that she left the family home only because of this.
69. It is also the case that Child B has been identified with other difficulties which the Council would not have known about or could have predicted at the time of the placement. However, FASD is the prime diagnosis.
70. The Council’s improved adoption procedures now, while of benefit to other prospective adopters and children waiting placement, does not mitigate or remedy Mr X and his family’s injustice. Mr X also considers he has not received the apology letter as recommended by the Stage 2 investigation.

Agreed action

71. Where there has been avoidable distress, the Ombudsman’s recommendation to remedy such injustice is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period. However, there is discretion to recommend a higher amount where the injustice is particularly severe and prolonged.
72. In the Ombudsman’s Guidance on Remedies dated December 2019, it states:

“harm, or risk of harm, can occur when the complainant, because of fault by the council, did not receive services intended to provide protection and that the risk of harm needs to be considered in the same way as distress and would include: severity of the harm; the length of time involved; the number of people affected; whether the person affected is vulnerable and affected more severely than most and any relevant professional opinion about the effects on any individual”.

73. The guidance says that, “where the risk was significant, or harm actually occurred, a remedy payment of up to £1,500 may be recommended to acknowledge this. Exceptionally, if there was significant actual harm, over a prolonged period, we may recommend more.
74. I consider that this case merits a remedy for the injustice to the family more than the Ombudsman might normally recommend. Mr X and his wife now have a lifelong caring role for Child B, which is likely to extend into her adulthood.
75. In this case, the Council will provide the following within one month of the final decision statement:
1. because Mr X is not satisfied with the Council’s apology, the Council will now issue a fresh apology letter highlighting and specifying all the faults identified by the Stage 2 investigator, referring also to the findings in this statement, along with a recognition of the injustice caused to the family by the Council’s faults;
2. Mr X and his family’s avoidable distress is severe and prolonged. The Council will make a payment of £5,000 specifically for the adverse, long term consequences to the family by being given inaccurate information about the FASD test;
3. the Council has delayed unreasonably in dealing with Mr X’s complaint and has caused Mr X avoidable frustration in his attempts to have his complaint properly considered. The Council has paid £500 for Mr X’s avoidable distress but it will pay a further £400 for the avoidable stress caused by the faults in the complaint process;
4. the Council will provide information to the Ombudsman about improvements made to its complaints procedure to ensure prompt and adequate investigations are carried out at all stages of the statutory process;
5. the Council has improved its adoption practices. The Council will provide further information about how its revised procedures are working in practice. It could give an example of a recent adoption case, with identities redacted, where the Council ensured accurate and full information was provided to the prospective adopters and/or examples of the outcome of its new quality assurance procedures.
76. Any complaint about the adoption support being provided now is effectively a new complaint and Mr X should first complain to the Council if he has concerns.

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Final decision

77. There is fault causing injustice. The Council has agreed the findings and recommendations. Therefore, I have completed my investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman