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Hertfordshire County Council (20 000 831)

Category : Children's care services > Adoption

Decision : Upheld

Decision date : 27 Jul 2021

The Ombudsman's final decision:

Summary: Mrs M complained the Council had not properly considered her adoption application or fairly assessed her. She said the Council had discriminated against her due to her ethnicity and her husband’s mental health. She said this has stopped her being considered properly for adoption and caused delay and distress. The Council were at fault for not following the statutory guidance and have agreed to a remedy for the injustice caused to Mrs M.

The complaint

  1. Mrs M complains the Council has not properly considered an adoption application made with her husband in January 2020, nor fairly assessed them. She says the Council has discriminated against her due to her ethnicity and ethnic heritage and had not properly considered her husband’s mental health. She said this has caused her distress and unnecessary delay.

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The Ombudsman’s role and powers

  1. 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)
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. 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)
  4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  5. 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.

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How I considered this complaint

  1. In considering this complaint I have:
    • spoken to Mrs M, and reviewed the information presented with his complaint;
    • put enquiries to the Council and read the information sent in response;
    • researched all relevant law, guidance, and policy;
    • shared with Mrs M and the Council the draft decision and I have reflected on the comments received before making a final decision.

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What I found

Statutory Guidance

  1. Councils must have regard to the Department of Education’s 2013 statutory guidance on adoption when carrying out duties relating to the adoption of children and the recruitment and support of adopters in England.
  2. An adoption agency should respond impartially to requests for information about becoming an adopter and provide this within ten working days through an information session, a visit, pre-planned telephone call or similar arrangement with the potential adopter.
  3. Potential adopters need to formally register their interest with an adoption agency to enter stage one of the approval process.
  4. The agency should decide within five working days from receipt of a registration of interest form whether to accept this, unless there are exceptional circumstances which mean that longer is needed.
  5. The agency may need to arrange a visit or have a meeting or a pre-planned telephone call with the prospective adopter to decide whether to accept their registration of interest.
  6. The agency must assess a prospective adopter’s ability to parent and meet the needs of a child throughout childhood.
  7. Where an agency declines a registration of interest it should provide the prospective adopter with a clear written explanation of the reasons why.
  8. Stage One of the procedure starts when the agency accepts the registration of interest to adopt.
  9. At Stage One the adoption agency will focus on training and preparation. It will decide, through checks and references, whether the prospective adopter is suitable to adopt a child and if not it will not continue further.
  10. Where an agency decides a prospective adopter is not suitable it must inform them of the decision and provide a clear written explanation.
  11. Those who wish to complain about this decision may make a complaint using the agency’s local complaints procedure. The Independent Review Mechanism is not available for decisions made during Stage One.
  12. The guidance says mild chronic conditions are unlikely to prevent people from adopting provided the condition does not place the child at risk or limit adopters in providing children with a range of beneficial experiences and opportunities. Agencies should bear in mind the possibility of providing support in appropriate cases. More severe health conditions may raise a question about the suitability of the prospective adopter, but each case will have to be considered on its own facts and with appropriate advice.

Equality Act 2010

  1. It is unlawful to treat someone less favourably because of age, race, religion, or disability. It is not within the Ombudsman’s jurisdiction to say whether a council has acted unlawfully or in breach of the Equality Act. If someone considers they have been discriminated against, they can make a claim to the County Court or make a complaint to the Equality and Human Rights Commission.

What Happened

  1. This summary includes key events in this case and does not cover everything that happened.
  2. Mr and Mrs M made an enquiry with the Council about adoption in January 2020.
  3. An adoption information pack was provided by the Council which contained information about children looking for families and what happens next in the adoption process.
  4. The Council replied to Mr and Mrs M by email and letter in late February 2020 and refused to progress Mr and Mrs M’s enquiry. It said it had based its refusal on checks which it said showed the couple had previous involvement with Children’s Services and enclosed a previous refusal letter it had sent Mr and Mrs M after they had made a previous enquiry about adoption in October 2017 and said its reasoning was the same.
  5. Mr and Mrs M complained and asked the Council to explain the exact reasons for its refusal. They said the decision was unfair and discriminatory.
  6. In its Stage One response, the Council upheld the decision not to progress Mr and Mrs M’s enquiry for the reasons previously given. It said it had considered the involvement of Children’s Services with the family in 2015 and would not progress their adoption enquiry further because of:
  • previous disclosures and alleged threats in 2015;
  • incidents of note;
  • Mr M’s ‘complex’ mental health needs;
  • information contained in a Child and Family (C&F) assessment from 2015, and;
  • further information it had gathered following Mr and Mrs M’s earlier adoption enquiry in 2017.
  1. Mr and Mrs M responded in April 2020 and said they did not accept the reasons given and requested the Council escalate their complaint.
  2. In June 2020, the Council wrote to Mr and Mrs M saying it had looked at their complaint under Stage Two of the Council’s complaints procedure. The Council said it had now decided to review the historical information it had relied upon alongside Mr and Mrs M’s current circumstances. It said this would assist in making a final decision. The Council apologised to Mr and Mrs M for any confusion caused by conducting the complaints process and sending letters from its Adoption Service side by side. The Council said that it “anticipated that this would give the opportunity to explore the issues directly with the Adoption Service rather than manage this via a complaints process”.
  3. The Council also apologised for any distress caused and said that it would allocate Mr and Mrs M a social worker to assist with the adoption process. It said it had passed the enquiry back to the Adoption Service and completed its Stage Two investigation.
  4. Mr and Mrs M complained to the Ombudsman in July 2020.
  5. A meeting took place between the Adoption Service and Mr and Mrs M in late July. During this meeting Mr and Mrs M said they had felt they had been discriminated against due to their ethnicity and that the reasoning for their rejection had been vague. The couple strongly denied any disclosures or making harmful statements and questioned the Adoption Service’s use of terminology when referring to Mr M’s mental health.
  6. The Council sent a letter to Mr and Mrs M in August 2020. It referred to a written agreement between Mr and Mrs M and Children’s Services which had been signed by the couple in 2015. This advised the couple to continue accessing resources for Mr M’s mental health. It explained the adoption process was vigorous and said it would pay for counselling which it suggested the couple would benefit from. It said that it would be prepared to take the couple forward to Stage One of the adoption process once they had completed this.
  7. Mr and Mrs M were allocated a social worker in November 2020 after engaging and completing the suggested counselling.
  8. Mr and Mrs M signed their formal expression of interest in early December 2020.
  9. Over a few weeks Mr and Mrs M virtually attended a foundation day, a workshop and the first day of their adoption training after beginning Stage One of the adoption process. However, the Council suggested the couple should not continue participation during day two of the adoption training due to Mr and Mrs M explaining their historical issues with the Council via the training session.
  10. The Council requested an emergency meeting with Mr and Mrs M to explore the issues raised at the training.
  11. Mr and Mrs M wrote to the Council and withdrew their registration of interest in January 2021.
  12. The Council responded to the withdrawal addressing the points that Mr and Mrs M had raised and closed Mr and Mrs M’s registration of interest in January 2021.
  13. The Council responded to my enquiries both in April and in July 2021. The Council said that it recognised “The Statutory Guidance does not set out the need to undertake any internal checks before a formal expression of interest, it is standard practice [for the] Council that an internal check of our Children Services records is undertaken at initial enquiry stage, with the consent of the enquirer…” It said it completed the checks in the enquiry stage as a safeguarding measure.

Analysis

  1. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way it reached its decision.
  2. The Council considered the information it held about Mr and Mrs M after their enquiry and before a registration of interest had been signed. It decided not to progress their enquiry. It told them its decision and gave reasons. It also considered Mr and Mrs M’s complaint using its complaints procedure. Mr and Mrs M felt the Council had not considered their enquiry properly and the refusal had been pre-determined and discriminatory due to their ethnicity and heritage.
  3. I have considered evidence obtained by the Council and have seen the social worker’s contemporaneous notes, previous disclosures regarding alleged threats and incidents of note, notes relating to Mr M’s mental health and a signed written agreement. I find that the Council, therefore, considered all relevant information when deciding not to progress the application. I have not seen any evidence the Council’s decision not to progress Mr and Mrs M’s enquiry was based on ethnicity, ethnic heritage/background, or religion.
  4. The statutory guidance says the Council should respond impartially to requests for information. It says it will provide this within ten working days through an information session, a visit, pre-planned telephone call or similar arrangement with the potential adopter. While I acknowledge the Council did send an information pack, its own website tells potential adopters that following receipt of the adoption pack the Council would invite them to an ‘adoption information meeting’ and tells the applicants that “if you wish to proceed, we’ll ask you to complete an expression of interest form.”
  5. The Council had initially rejected Mr and Mrs M’s adoption enquiry after assessing checks from a previous enquiry in 2017. While I acknowledge the Council’s explanation this was to safeguard children, this assessment took place before Mr and Mrs M signed a formal registration of interest. There was no cogent reason why the Council could not have undertaken the checks and assessment within the procedure set out in the statutory guidance and time limits this provided. This was fault and caused Mr and Mrs M an injustice. They lost the opportunity to discuss their interest to adopt within the procedure set out in the statutory guidance and experienced unnecessary and significant delay of twelve months before proceeding to Stage One.
  6. The Council, following its Stage Two investigation, decided to refer Mr and Mrs M’s enquiry back to the Adoption Service for further consideration of their current situation. This was a missed opportunity for the Council to request the couple complete an expression of interest form and created further delay.
  7. A meeting took place with Mr and Mrs M in July 2020, seven months after their initial enquiry. At the meeting, the Council suggested that Mr and Mrs M take part in counselling to resolve any issues they may have experienced. This should have been an impartial visit to share information with them about adoption. Instead, the Council used this visit to assess the couple as potential adopters. This was fault. The Council should not have undertaken an assessment until Mr and Mrs M had formally registered their interest with the adoption agency. The guidance says the initial assessment should take place after someone has formally registered their interest. The Council’s procedure gatekeeps who can register their interest to adopt and circumnavigates the statutory time frames for assessment.
  8. There was a significant difference between what the guidance said should happen when a potential adopter wishes to register their interest and what happened. The Council is at fault for not having due regard to the Department of Education’s 2013 statutory guidance on adoption.
  9. Where we find fault that has caused injustice, we aim to put the person back in the place they would have been but for the fault. Our Guidance on Remedies suggests that where a person cannot be put back in the place they would have been but for the fault identified in the investigation we will recommend the Council makes a symbolic payment in recognition of the distress caused and the avoidable delay Mr and Mrs M have been put.

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Agreed action

  1. By 24 August 2021 the Council has agreed to:
  • apologise to Mr and Mrs M in writing for the delay and not following the statutory guidance;
  • pay Mr and Mrs M £300 for distress and delay; and

By 18 January 2022 the Council has agreed to:

  • review its adoption recruitment procedure to ensure it adheres to the Department of Education’s 2013 statutory guidance on adoption.

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Final decision

  1. I find fault with the Council for not following the statutory guidance on adoption. The Council has agreed to a remedy to address the injustice caused to Mr and Mrs M.

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Investigator's decision on behalf of the Ombudsman

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