Summary: We do not find fault in the investigation of Miss Y’s complaint about an adoption agency’s involvement with her grandchildren who are subject to a Special Guardianship Order. We do not uphold the points of complaint which Miss Y continues to dispute because they have been subject to a thorough and independent investigation. However, we consider the remedy already provided does not go far enough in resolving Miss Y’s injustice. The Council will make a payment of £250 to fully remedy the time and trouble from the fault identified during the complaint investigation. The Council will also meet with Miss Y to consider whether her grandchildren need ongoing support.

The complaint

1. The complainant, whom I will call Miss Y, complains about the investigation into her complaint regarding the lack of support provided to her family by the Council and a local adoption agency.
2. Miss Y says the outcomes agreed during the complaint investigation do not go far enough in providing a suitable remedy for the injustice her family have experienced. Miss Y also complains some of the agreed outcomes have not yet been implemented.

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The Ombudsman’s role and powers

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. 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

5. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
6. I made enquiries of the adoption agency, via the Council, and considered its response.
7. I consulted the law and guidance relevant to this complaint, which I have cited where necessary in this statement.
8. I issued my provisional findings in a draft decision statement and invited comments from both parties which I considered before I made a final decision.

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What I found

Special Guardianship Orders and financial assistance

9. Family and friends carers may decide to go to court, sometimes with the help of the council, to gain a Special Guardianship Order (SGO) for a child. The SGO provides the guardian with some, but not all, parental responsibility for the child. The guardian would be free of the controls placed on looked after children and their carers. It would allow them to decide such things as the child’s health matters and schooling. Government intended special guardianship as one way to give a firm footing on which to build a lifelong relationship between the child and their carer.
10. Financial support and other services may be available for a special guardian, the child and the parents under the Adoption and Children Act 2002. There is no automatic entitlement to an assessment for support services unless the child was looked after by a Local Authority. However, guardians of children who were not looked after may request an assessment if they consider they need support.
11. The assessment and provision of services remain the responsibility of the local authority where the child was last looked after for at least three years from the order. This rule applies regardless of where the family live during this period. If the family move house during the three years, or there is any other significant change in their circumstances, the local authority may wish to undertake a reassessment and alter the support plan accordingly.

Complaints under the statutory procedure

12. Section 26(3) of the Children Act (1989) says all functions of the Council under Part 3 of the Act may form the subject of a complaint under the statutory complaints procedure.
13. Complaint investigations under the statutory procedure consist of three stages:
• Stage 1: Staff within the service area complained about try to resolve the complaint.
• Stage 2: An Investigating Officer (IO) and an Independent Person (IP) investigate the complaint. The IO writes a report which includes details of findings, conclusions and outcomes against each point of complaint (i.e. “upheld” or “not upheld”) and any recommendations to remedy injustice to the complainant.
• Once the IO has finished the report, a senior manager should act as adjudicating officer. They will consider the complaints, the IO’s findings, conclusions, and recommendations, as well as any report from the IP, and the complainant’s desired outcomes. The adjudicating officer should write to the complainant with their decision on each complaint (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
• Stage 3: A review panel considers the complaint. The panel must consist of three independent people. Following the panel, the members write a report containing a brief summary of the representations and their recommendations for resolution of the issues (The Children Act 1989 Representations Procedure (England) Regulations 2006 19(2)).
• The council must send its response to the panel’s recommendations to the complainant within 15 days of receiving the panel’s report. The response should set out how the council will respond to the recommendations and what action it will take. If the council deviates from the panel’s recommendations it should explain its reasoning in the response (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
14. The regulations specify the IO should be independent. They may be an employee of the Council but should have not been involved with the subject matter of the complaint. To ensure impartiality, the process is also overseen by an IP, who is neither an elected member nor an employee.
15. Unless there is evidence of fault in the investigation process, the Ombudsman will not usually re-investigate a complaint which has been through the full procedure. This is because a properly conducted investigation is independent and robust.

Cross boundary complaints

16. The statutory government guidance ‘Getting the Best from Complaints’ emphasises the importance of being alert to cross-boundary issues during an investigation. The guidance also says that the Complaints Managerss should have protocols in place for the successful handling of these complaints.
17. The Council’s current policy says, “Where complaints cross other Local Authorities, organisations or services outside BCP Council and the child is not in care, liaison must take place between the two organisations. The Complaints Manager will take the lead for this liaison on behalf of BCP Council. The elements of complaint that are the responsibility of BCP Council services will be progressed through the appropriate route… A joint response should always be considered, but separate responses in some cases may be appropriate”

Background of key events

18. Miss Y complains about an adoption agency commissioned by the Council to provide adoption and special guardianship services.
19. Miss Y has three grandchildren who previously lived with their mother in another council’s area, which I will refer to as the ‘home authority’. In June 2010 the police placed the three children in the emergency care of Miss Y at her home address.
20. After agreeing to care for her grandchildren, Miss Y says there was considerable delay before she received any contact from the home authority about the support being put in place for the children.
21. Miss Y says she did not understand the processes taken at the time but recalls that she and her partner provided foster care for the children before being asked by the home authority to apply for Special Guardianship Orders (SGO). Miss Y says the authority gave an ultimatum: to apply for the SGO or to have the children removed and adopted by other families.
22. Miss Y moved house within the area of Bournemouth, Christchurch and Poole Council. She says the home authority told her it no longer had responsibility for the children. Miss Y says she contacted children’s services in the new Council’s area, but they failed to respond to her requests.
23. The headteacher at the children’s new school helped the family in receiving support from the adoption agency. Miss Y also tried to arrange therapeutic support for the children. She says the agency have failed to support her over the years and in particular failed to help with a referral to the Children and Adolescent Mental Health Service (CAMHS). Miss Y says the referral failed because the agency did not make clear how long the children had lived with Miss Y and did not reiterate a psychologist’s view that the children required CAMHS support.
24. Miss Y also asked for support in receiving an assessment for the children under Section 17 of the Children Act to establish whether they were ‘children in need’.

Complaint investigation: Stage one

25. Miss Y complained in February 2020 that she was not receiving the support she was entitled to. The agency did not uphold the complaint but said it would support Miss Y in seeking a financial reassessment with the Council and offered to assist her in making a referral for respite support.
26. The agency concluded “It could be that you feel your needs are greater than we can meet within the post SGO support team, and we can discuss with you whether you feel a referral to the Childcare Teams (under children in need) would be appropriate”. The letter also explained how Miss Y could escalate her complaint if she remained dissatisfied.

Complaint investigation: Stage two

27. Dissatisfied with the response received at the first stage of the complaints process, Miss Y requested escalation to stage two. Miss Y discussed her complaint with the appointed IO and agreed upon the terms of complaint on 2 June 2020. I have summarised and grouped the complaints in the following section of this statement under the appropriate headings.

Complaints upheld

28. Complaint 1a: the agency failed to recognise the children’s need for ongoing therapeutic support including consideration of a referral to CAHMS following a recommendation made by a psychologist prior to the children’s move. The IO found the agency should have referred the children back to CAMHS when it became apparent that previous recommendations could not be implemented.
29. Complaint 1b: Miss Y complains the agency failed in their duty of care, failed to listen and respond to Miss Y including her request for an assessment of the children under Section 17 of the Children Act as ‘Children in Need’. The IO found the agency had failed to respond to Miss Y’s request for a S17 assessment.

Complaints partially upheld

30. Complaint 1d: support for two children was discontinued without discussion with the special guardians or the team around the family. As a result, the children no longer have the support of a dedicated social worker. The IO found the decision to end the support for two of Miss Y’s grandchildren was based on the professional judgement of three social workers which the IO had no reason to question. However, the agency had no record of discussing with Miss Y its intention to discontinue the support provided.

Complaints not upheld

31. Complaint 1c: Miss Y says the children require EHCPs to support their progress in school. The IO found that professionals have stated “categorically” that the children do not meet the criteria for an Education Health and Care Plan (EHCP). Furthermore, the agency has no responsibility for making decisions about EHCP assessments.
32. Complaint 3: the agency has failed to assign a dedicated social worker to Miss Y and failed to ensure the guardians have a complete understanding of all support services available to them. The IO found evidence that the agency had provided Miss Y with information about sources of support. The IO found it was not within the agency’s remit to provide guardians with an allocated social worker.
33. Complaint 4: the agency failed to consider Miss Y’s personal circumstances. This meant that Miss Y has not received help with transport to attend courses or for the children to attend special events, has not received respite provision when needed and has not been included in online support groups. The agency has also failed to attend meetings with Miss Y or to visit the children as arranged. The IO found that Miss Y had misunderstood the agency’s remit. In the areas which it could assist, for example invitations to the online groups, the IO found the agency had made attempts to help. The IO also found the agency had “as far as possible” fulfilled their role in attending any relevant family meetings.
34. Complaint 5: the agency has failed to respond to Miss Y’s concerns about financial support for the children. Miss Y has set out a number of areas for which she feels the Council should provide financial support. The IO found the family receives a SG allowance which the agency has no authority to amend due to the funding responsibility being with the home authority. The home authority is responsible for the initial means-tested assessment, review dates and adjustments to payments. The home authority has agreed to reassess Miss Y, but she has refused to participate in the assessment.

Complaints with no finding

35. Complaint 2: the agency has failed to provide and review support services as described in the regulations. The IO could not reach a finding due to there being conflicting professional opinion about the level of support which Miss Y and her family require. Although the IO could not reach a finding, they recommended an urgent review of Miss Y’s case to make “alternative arrangements… for a change in the support available to this family”.

Summary of recommendations

36. The IO, in agreement with the IP, made the following recommendations to remedy the upheld elements of Miss Y’s complaint:
• The agency to reflect upon the findings of this investigation and question their understanding, and response to, the recommendations of CAMHS made in 2018. The agency should also consider the need to educate and train its staff to ensure that responses are appropriate to recommendations made.
• The agency to consider the errors and omissions revealed in this case and, where necessary, arrange training to ensure that responses it makes are in line with the requests made.
• The agency to ensure, as a matter of good practice, that its service users are fully involved when decisions are taken. This will help service users understand the decision making process and enable them to work with the agency.
• As a matter of urgency, the agency should immediately make alternative arrangements for a change in support for the family. This is due to there being a complete breakdown in the relationship between Miss Y and the agency and her need for ongoing professional assistance.

Stage two adjudication

37. The Adjudicating Officer (AO) reviewed the conclusions reached during the stage two investigation on 12 November 2020. The AO agreed with all findings except for complaint 1b). This is because the AO explained their view that the agency was responsible for providing post-SGO support assessments only. The Council is responsible for undertaking assessments under Section 17 of the Children Act, which the agency requested on Miss Y’s behalf in March 2020. The Council’s assessment was subject to delay. It eventually concluded that Miss Y did not meet the threshold for support under Section 17 and decided not to accept the referral.
38. The AO decided that Miss Y could have requested an assessment herself at an earlier stage and this should have been explained to her. The AO also recognised the agency could and should have chased up the response to the referral it made in March 2020.
39. In response to the recommendations made by the IO, the AO said:
• The teams at the subject of this complaint are under new management. Families now have an assessment which is reviewed regularly in supervision. The manager will also share complaint findings within a team meeting to ensure failures are not repeated.
• The manager will also remind staff about the requirement to inform carers of case closure in respect of any child within the family.
• The Council will undertake an assessment to decide what support to put in place for Miss Y. The Council has allocated a support worker to undertake this work.
• The agency apologises to Miss Y for the errors and omissions and would like to offer reassurance that all matters will be addressed so that other families do not face the same difficulties.
• The agency also apologises if Miss Y feels that she was not given the level of respect she expected. The agency is also sorry that they could not work effectively with Miss Y to support the children.

Complaint investigation: Stage three review panel

40. Miss Y requested a review of her complaint at stage three of the complaints procedure on 24 March 2021. The Council responded later that day to advise that the 20 working day limit for requesting a stage three investigation had passed, and instead she should approach the LGSCO for a review of her complaint.

The Ombudsman’s analysis

41. As the first section of this statement sets out, it is not our role to reinvestigate matters which have already been subject to a properly conducted and independent investigation. To do so would not be a good use of public resources. Instead, our role is to consider the following:
1. Was the investigation properly conducted and are the conclusions evidence based. If not, would the Ombudsman reach a different view based on the information available to us?
2. Did the Council offer a proportionate remedy for the injustice caused by fault? If not, would the Ombudsman recommend any further remedial action?
3. Has the Council fully implemented any agreed remedy? If not, has the delay caused any further injustice to the complainant?
42. Miss Y feels that her complaint remains unresolved. Despite going through the first two stages of the statutory complaints procedure, Miss Y says that matters remain largely unchanged and her family continue to lack crucial support which they urgently require. Although Miss Y welcomes the procedural changes and training which were agreed during the investigation, she remains dissatisfied with the decision not to allocate a social worker and provide the family with additional financial assistance. I have therefore focused my investigation on these elements of the complaint to decide whether the independent investigation made reasoned conclusions on the evidence available and, if not, whether Miss Y should receive any further remedy. I have also considered whether all parts of the agreed remedy have been implemented.
43. The IO did not uphold Miss Y’s complaint about a lack of financial assistance because they concluded the home authority was responsible for assessing and delivering financial support, not the adoption agency. When making enquiries of the Council, I asked the IO and IP to clarify why they did not conduct a joint complaint investigation against both the agency and the home authority. The IO and IP explained that Miss Y made clear that she did not wish for her finances to be reassessed by the home authority. They provided an email from Miss Y to evidence this. The IO explained how Miss Y had made clear that her complaint was against the agency only and she had never pursued a formal complaint about the home authority in the eleven years she has cared for the children. I therefore find there was no scope to conduct a joint investigation because Miss Y did not have a complaint against the home authority.
44. Although I appreciate Miss Y feels strongly that she should receive additional financial support, I find no fault in the investigation of complaint five. The IO and IP made an evidence-based decision after reviewing a range of information and the relevant regulations. If Miss Y continues to disagree with the level of financial support which she receives, she may wish to discuss her concerns with the home authority with a view to arranging a financial reassessment. If Miss Y has concerns about the initial decision to pursue a SGO, and the impact this had on the level of financial support available to her, she may also wish to pursue this with the home authority as a formal complaint. However, Miss Y should be mindful of the significant passage of time since the placement of her grandchildren and the possibility that it may now be too late for the authority to respond to a complaint.
45. Turning now to Miss Y’s complaint about the allocation of a dedicated social worker, I also find the IO and IP reached an evidence-based decision and I do not find fault in the conclusions reached. The IO’s report sets out clearly why Miss Y does not currently have an allocated social worker but did find that Miss Y and her family needed an assessment to identify whether they needed alternative support.
46. On 6 November 2020, and one month after the IO’s recommendation, the agency and the Council allocated a senior support worker on a short-term basis to establish what additional support, if any, the family required. The worker started the assessment in November 2020 which concluded in July 2021. The assessment concluded the family did not require any support in addition to the services already received.
47. The outcome of the assessment was not what Miss Y hoped for. In response to my draft decision Miss Y said the IO was clear the family needed additional support. However, having reviewed the wording of the IO’s report, it is my view the IO’s recommendation was for the Council to consider what support, if any, the family needed. Miss Y says the Council failed to undertake the assessment properly, and the report contains inaccuracies which call into question the decision not to provide support.
48. For example, Miss Y says the support worker said she had seen the children alone, but this did not happen. The Council has since clarified the support worker met with all three children in January 2021 in a communal area of their home and apologised for the error in starting the children were seen alone. Miss Y also says the Council failed to hold a ‘Team Around the Family’ (TAF) meeting with the school before completing the assessment. However, the Council has explained that, in its view, Miss Y withdrew her consent for the meeting to go ahead in an email dated 18 January 2021, in which she said, “I do not want the school knowing my business, I have made this clear. They do not need to know about my personal information from my doctor about the children and I do not want you discussing this with the school”.
49. I am satisfied the Council complied with the recommendation; it arranged some short-term support from a support worker who assessed the family’s need for long-term support over the course of nine months. Miss Y clearly disputes the Council’s views about her ongoing needs and has explained the family’s circumstances have changed since the assessment because her grandchildren have since met with CAMHS. Although I am not persuaded the errors in the assessment had a material effect on the outcome, I am satisfied that any uncertainty will be resolved because the Council has now agreed to meet with CAMHS to discuss ongoing support for the children. The Council will also allocate a social worker, via the agency, who has had no prior contact with the children to undertake a new assessment with up-to-date information.
50. With regards to the other recommendations, I am satisfied the agreed actions have been implemented fully by the Council and the agency.
51. Finally, I have considered whether the remedies suggested by the IO and IP are suitable and proportionate to the fault identified. The IO found failure by the agency to: support the family with a referral to CAMHS, support the family in seeking a S17 assessment and to communicate the decision to discontinue support for two of the children. I am mindful that neither of the two referrals were successful and therefore any delay in those assessments did not create significant injustice to the family, other than some frustration and time and trouble. I am also mindful that Miss Y did not express a wish for any financial remedy from the complaint, however she has maintained a desire for additional support for the family.
52. In line with the LGSCO’s ‘Guidance on Remedies’ the Council will pay £250 to Miss Y to fully remedy the time and trouble she experienced from the fault identified by the IO and IP. Miss Y may choose to use this money to privately fund some support or respite for the family.

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Agreed action

53. Within four weeks of my final decision, the Council will pay £250 to Miss Y to remedy the time and trouble caused by the failures identified in the IO’s report.
54. Within four weeks of my final decision, the Council will contact Miss Y to seek her permission to hold a meeting with CAMHS to ascertain what support, if any, CAMHS recommend for the children.
55. Within six weeks of my final decision, the Council will arrange to allocate a social worker who has had no prior contact with the family to undertake a new assessment which will take into account any up to date psychological information.

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Final decision

56. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions the Council have agreed to implement are a suitable remedy for the injustice found.

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Investigator's decision on behalf of the Ombudsman