Summary: Ms X and Mr Y complained about the way the Council dealt with an adoption process. The Council was at fault for failing to consider all their complaints and delaying in completing the complaint procedure. This caused Ms X and Mr Y distress, frustration and uncertainty. The Council has agreed to apologise, make a payment to recognise the injustice caused and complete a new stage two investigation.

The complaint

1. Ms X and Mr Y complain about the way the Council dealt with an adoption process. They say the Council failed to:
1. provide adequate support and oversight throughout the adoption process;
2. manage the actions of a foster carer;
3. intervene to stop the adoption process;
4. include the views of a key social worker in the complaint investigation;
5. fully investigate their complaint; and
6. poorly communicated with them.
2. Ms X and Mr Y say this situation caused the children to be turned against them and the adoption process. They also say this caused significant distress and financial strain on the family. Ms X and Mr Y say they have now lost trust in the adoption process as the Council’s actions made them feel unsupported and isolated. They say false accusations made by the foster carer caused them humiliation and trauma.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

6. I have investigated Ms X and Mr Y’s complaint that the Council failed to properly investigate their complaints.
7. I have not investigated their substantive complaints. I have explained why in paragraph 43.

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How I considered this complaint

8. I considered evidence provided by Ms X and Mr Y and the Council as well as relevant law, policy and guidance.
9. Ms X and Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

Statutory complaints procedures - the three-stage process

10. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. We also published practitioner guidance on the procedures, setting out our expectations.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigating officer (IO) to look into the complaint and an independent person (IP) who is responsible for overseeing the investigation and ensuring its independence.
13. Following the investigation, a senior manager (the adjudicating officer) at the council should carry out an adjudication. The officer considers the IO report and any report from the IP. They decide what the council’s response to the complaint will be, including what action it will take. The adjudicating officer should then write to the complainant with a copy of the investigation report, any report from the independent person and the adjudication response.
14. The whole stage two process should be completed within 25 working days but guidance allows an extension for up to 65 working days where required.
15. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 working days of the date of request, and then issue a final response within 20 working days of the panel hearing.

Our investigation

16. The statutory children’s complaints procedure was set up to provide children, young people and those involved in their welfare with access to an independent, thorough and prompt response to their concerns. Because of this, if a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it.
17. However, we may look at whether there were any flaws in the stage two investigation or stage three review panel that could call the findings into question.

Looked after children

18. A child who has been in the care of their local authority for more than 24 hours is known as a looked after child.

Council’s duties to looked after children

19. A council has a duty under section 22 of the Children Act 1989 to safeguard and promote a child’s welfare.
20. To achieve these duties all looked after children must have a care plan which a council must keep under regular review. Care plans must include a long term plan for the child, details of the placement and why it was chosen, details of contact with siblings and a personalised health plan.
21. The Children and Social Work Act 2017 brought in new requirements for looked after children. These require a council to have regard to the seven principles of corporate parenting when carrying out their functions in respect of looked after children. These principles say a council must, amongst other things:

• act in the best interests, and promote the physical and mental health and wellbeing, of those children and young people
• promote high aspirations, and seek to secure the best outcomes, for those children and young people
• promote safety and stability in those children’s home lives, relationships and education or work.

22. Because council’s duties to looked after children are governed by the relevant parts of the Children Act 1989, complaints about those matters are often those that should be considered through the statutory complaints procedures. 

Allegations against foster carers

23. Fostering Services (England) Regulations 2011, sets out the procedures for managing complaints and allegations involving foster carers.
24. Schedule 6 details matters that fostering services must monitor, including complaints. Schedule 7 requires fostering services to notify authorities about certain serious events, including allegations of abuse and neglect, and the outcome of investigations.

What happened?

25. Ms X and Mr Y complained to the Council at the end of October 2023, about the actions of the Council and the foster carers of children they intended to adopt. The foster carers were employed by an independent fostering agency (“IFA”).
26. The Council responded in early December 2023. It noted it had investigated matters relating directly to the Council only. It explained that as they had complained about foster carers, who were employed by an IFA, it had sent these complaints directly to the IFA to investigate. The IFA employed an independent investigator to investigate these parts of the complaint.
27. Ms X and Mr Y were unhappy with the stage one outcome, and asked the Council to escalate this to stage two of the complaint procedure.
28. The Council allocated an IO and IP at the end of February 2024. The IO agreed 29 complaint points with Ms X and Mr Y. One of these complaints was that Ms X disagreed with the Council’s decision not to investigate direct complaints about the foster carers and the Council’s refusal to consider this at stage one. Ms X and Mr Y said it should be the responsibility of the Council, not the IFA, to investigate these matters.
29. The Council emailed the stage two AO letter and reports to Ms X and Mr Y at the end of July 2024. The AO apologised for the delay, which she said was because of staff absences. The AO agreed with the findings and recommendations of the IO.
30. The stage two investigation upheld Ms X and Mr Y’s complaints that:

• the Council was unclear about how introductions should be shared with the children;
• it had failed to adhere to a plan of instructions between the children and Ms X and Mr Y; and
• the Council failed, during the introductions period, to ensure the foster carer sent pictures of the children to Ms X and Mr Y.

31. The Council also partially upheld that it failed to oversee placement day which resulted in Ms X and Mr Y receiving the children’s clothes in a poor state.
32. The Council did not uphold nine of the complaint points because the IO considered them to be matters for the IFA to investigate. The Council disagreed with Ms X and Mr Y that it should have considered the actions of the IFA in its investigation. These included complaints about:

• the children’s inappropriate contact with birth family members;
• the foster carer sabotaging the plan for adoption for the children;
• concerns about the children’s medication; and
• the children’s clothes being poorly kept by the foster carer.

33. Stage two made several recommendations, including asking the IFA to share its report and findings with Ms X and Mr Y and to directly remedy for any injustice caused, if applicable.
34. In mid-August 2024, Ms X and Mr Y asked the Council to escalate their complaint to stage three.
35. The Council scheduled a stage three panel meeting for the end of October 2024. The panel noted that due to the high number of complaints, it did not wish to rush the review, and so it arranged for a second follow up meeting in November 2024 to enable Ms X and Mr Y to share their concerns thoroughly. It noted this delayed the process but for good reason. Ms X and Mr Y say the second review meeting only happened because they told the Council they were unhappy with the first.
36. The panel noted it agreed that nine out of 29 complaints were specifically the responsibility of the IFA to investigate. It did not uphold the complaint that it was the Council’s responsibility to investigate these complaints because it decided it could not dictate to an external agency who it should employ.
37. The panel also suggested that in future, complaints that are solely for another agency to investigate, should not be included in the agreed complaint summary at stage two.
38. The Council wrote to Ms X and Mr Y at the end of December 2024, with the final response. The AO apologised for the delay in sending the letter but did not explain reasons for this. The Council accepted the findings and recommendations of the stage three panel meeting.
39. Following stage two and three of the complaint procedure, the Council made several recommendations. These included service improvements and personal remedies to Ms X and Y. Including a payment of £650 for poor complaint handling.

The Councils response to my enquiries

40. The Council said it decided not to investigate matters relating to the IFA because it had followed the Fostering Services (England) Regulations 2011, which sets out the procedures for managing complaints and allegations involving foster carers.
41. The Council said the foster carer and the conduct and behaviour of the foster carer formed a large part of this complaint. It explained that because the foster carer was from an IFA, the IFA needed to do their own investigations into the allegations and concerns raised by the complainants.
42. The Council noted the IFA carried out a full investigation into the concerns raised by Ms X and Mr Y. Following this, the foster carer was deregistered.

Findings

The Procedure

43. If a complaint has already been through the second stage of the Children Act complaints procedure, this means they have already had access to an independent investigation. Therefore, our role is to consider whether a council has properly completed the procedure rather than re-investigate the substantive complaints.
44. The Council and Ms X and Mr Y agreed to 29 complaint points. But, the Council did not investigate nine of these points, because it decided it was the responsibility of the IFA to investigate these matters.
45. I welcome that the Council liaised with the IFA and that the IFA completed its own independent investigation into these matters. This was in line with the Fostering Services (England) Regulations 2011. But there is no evidence the Council used information from the IFA investigation to make findings in the statutory complaint procedure.
46. The Council should also have investigated or at least made a finding on all 29 complaint points. This is because the IFA was carrying out the statutory duties of the Council in relation to the care of the children. The Council was responsible for its duties as set out in section 22 of the Children Act and the Children and Social Work Act 2017.
47. Although these complaints did relate to the conduct of the foster carer, which would be for the IFA to investigate, these complaints also questioned the day-to-day care, safety and care planning of the children, which all fall under the duty of the Council. These complaints were also inextricably linked to the other elements of the complaint which the Council did consider.
48. The Council’s failure to consider all of Ms X and Mr Y’s complaints, its decision to split the complaint into separate procedures and its failure to consider the IFA investigation outcome in the statutory procedure was fault, which caused Ms X and Mr Y avoidable distress and uncertainty.
49. I will ask the Council to complete a new stage two investigation, to consider all elements of the complaint. In doing so, the Council should consider the IFA investigation report and decide whether this is sufficient to make findings related to the duties the Council owed the children. Or, whether it should investigate these matters in addition.

Timeframes

50. I am also concerned about the time it took the Council to complete the procedure. I note the Council took five months to complete stage two. We expect a Council to complete stage two within 65 working days.
51. There were also delays with stage three, which took the Council around five months to complete. I acknowledged that some of this delay was because it held a second stage three panel meeting to allow all the information to be heard, but we expect a council to complete stage three within 50 working days. These considerable delays were fault which caused Ms X and Mr Y uncertainty and frustration. The Council has already apologised for this and offered a symbolic payment of £650 and so I will not recommend any further remedies.

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Action

52. Within four weeks of my final decision, the Council will:

• apologise to Ms X and Mr Y for the frustration, uncertainty and distress caused by its faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
• provide evidence that it made the payment of £650 to Ms X and Mr Y for poor complaint handling;
• make a further payment of £250 to recognise the distress and uncertainty caused by the Council’s failure to properly consider all their complaints; and
• progress with investigation of Ms X and Mr Y’s complaint at stage two of the statutory complaint procedure and confirm appointment of an investigating officer and independent person to Ms X and Mr Y.

53. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman