Decision : Upheld
Decision date : 10 Jan 2018
The Ombudsman's final decision:
Summary: There were failings in the way the Council dealt with a referral to Children’s Services about the complainants’ child. The Council failed to provide an adequate remedy to them following an independent investigation into their complaint. It has now agreed a suitable remedy.
- The complainants, referred to here as Mr X and Ms Y, complained that the Council has not provided a satisfactory response to their complaint about the way it dealt with a referral to Children’s Services about their family. The complaint was considered under the statutory children’s social care complaints procedure.
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. However, we 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 Mr X and considered the information he and his partner provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on child protection. I shared my draft decision with the Council and the complainants and considered their responses.
- 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.
What I found
- Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
- These duties are set out in Statutory Guidance ‘Working together to safeguard children’. When a council children’s social care service receives a referral about a child who may be at risk of significant harm it must decide within one working day what type of response is needed. This will include deciding whether:
- the child requires immediate protection and urgent action is required;
- the child is in need, and should be assessed under section 17 of the Children Act 1989;
- there is reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm, and enquiries must be made and the child assessed under section 47 of the Children Act 1989;
- any services are required by the child and family and what type of services;
- no further action is required.
- Professionals in all agencies have a responsibility to refer a child to the local authority children's social care services when they believe or suspect that the child has suffered or is likely to suffer significant harm.
- “Where practicable, concerns should be discussed with the parent and agreement sought for a referral to local authority children's social care unless seeking agreement is likely to place the child at risk of significant harm through delay or the parent's actions or reactions; For example in circumstances where there are concerns or suspicions that a serious crime such as sexual abuse or induced illness has taken place.”
- “In some situations there may be a concern that a child may have suffered, or is likely to suffer, significant harm …., but professionals may be unsure whether what has given rise to concern constitutes 'a reasonable cause to believe'. In these situations, the concern must not be ignored.”
- Mr X and Ms Y have two children, C and D. C was aged nine and D was seven at the time of the events in this complaint. In early 2014 the Council’s Family Services received a referral from someone who knew Mr X saying he had posted inappropriate comments on Facebook about one of his children. The social worker who was allocated the case spoke to Mr X by telephone and had a meeting with Mr X and Ms Y at the Council offices, but decided it was not necessary to carry out a home visit to see the children. The Council completed an assessment report without seeing the family. It decided there were no welfare concerns about the children, and the threshold for a child protection enquiry was not met. It decided that Mr X’s comments had been misunderstood and taken out of context. It closed the case in March 2014, but noted that if Family Services received another similar referral in future the Council would need to consider whether to start a child protection enquiry. The Council did not send Mr X and Ms Y a copy of the assessment report. The children’s school (‘the School’) was aware of the referral.
- In November 2014 the School observed D putting her hands down her tights on several occasions. The School contacted Family Services for advice and was told to make a referral, which it did. The Council told the School not to tell the parents it was making a referral.
- On considering the referral, Family Services decided the threshold for a child protection investigation was not met. But it decided to carry out a child in need assessment to look at the welfare of the children in light of the previous referral. The Council advised the School to tell the parents about the referral, now that it was not being treated as a child protection enquiry.
- In early December the Headteacher had a meeting with Mr X and Ms Y and informed them she had made a referral. The Headteacher confirmed she did not consider the behaviour was sexual and thought it might have been related to a medical problem. She said D had told the School her hands were cold and she was trying to warm them up.
- Mr X had a meeting with the social worker dealing with the assessment. He expressed his dissatisfaction with the way the Council was handling the matter. The meeting ended without the social worker being able to explore any concerns further. Mr X did not agree to a home visit. He said he would be consulting a solicitor.
- There was an exchange of email correspondence between Mr X and the Council with Mr X asking the Council to address questions about how it was dealing with the referral. He also asked for a copy of the assessment report arising from the referral earlier in the year. When he received a copy, he found the report included a statement that he and his partner had refused to allow the social worker to make a home visit or carry out checks with other agencies. He protested that this was not the case and the record was wrong.
- In March 2015 the social worker discussed the case with the lead officer for Child Sexual Exploitation who advised her to make a referral to the Local Authority Designated Officer (LADO). This is the officer in the Council who deals with allegations against people who work with children. After further discussion the LADO decided the referral did not meet the threshold for investigation.
- In April 2015 the Council closed the case because it could not progress the child in need assessment without the parents’ agreement, and the concerns did not warrant a child protection enquiry. The Council wrote to Mr X and Ms Y to tell them its decision.
- Shortly afterwards Mr X asked the Council for copies of its Family Services records about his family. He and Ms Y then made a complaint to the Council about the way it had dealt with both referrals and the information on the records. This included the following complaints:
- that the Council had not given them an opportunity to comment on the assessment report following the first referral, that it had failed to send them a copy of the report, and that the report contained inaccuracies;
- that it gave inappropriate advice to the School in November 2014 to make a referral rather than discuss his daughter’s behaviour with them, and failed to deal with the referral properly;
- that it wrongly referred the matter to the LADO as Mr X does not work with children;
- that there were mistakes in the records.
- The Council had wrongly recorded that Mr X and Ms Y had refused to allow the social worker to see the children in March 2014 and refused agency checks.
- The assessment at that time was inadequate and there was unreasonable delay in sending Mr X and his partner a copy of the report.
- The Council made a “major error” in recording and interpreting the referral raised by the School in November 2014 in a way which suggested concerns about sexualised behaviour.
- The Council’s advice to the School was wrong and caused it to breach the proper procedure by not telling the parents about the referral.
- The Council was partly responsible for the lack of progress with the second assessment because the failings in the previous one made it understandable that the parents were reluctant to let the social worker visit the family.
- The Council should have responded to Mr X’s questions by allowing for the possibility that one outcome of a meeting with the social worker could have been a decision to close the case. This might have resulted in a decision to close it earlier.
- There were no grounds to make the referral to the LADO as Mr X did not work with children, and there was no explanation for the decision to do so.
- Some of the records were inaccurate.
- carry out a review of the way it dealt with the first referral following the Facebook post, in particular the decision not to undertake a child protection enquiry;
- correct the records on three points:
- the record that says Mr X and Ms Y refused to meet the social worker in March 2014
- the reference to C/D’s ‘sexualised’ behaviour
- the reference to Mr X working with children, including the LADO referral form;
- The advice to the School was wrong, not only because the Council had advised it not to inform him about the referral. It should have told the School to discuss the issue with them first, before deciding to make a referral. Their view was that if it had, the School would not have referred the matter to Family Services.
- There were more corrections needed to the files, including the closing summary.
- They wanted to know why Mr X was referred to the LADO and why the Council said it was not possible to investigate this matter further.
- He wanted financial compensation, and the £150 offered was not enough.
- In response to the Ombudsman’s enquiries the Council confirmed it had:
- amended the records, including the closing summary, in line with the Review Panel’s recommendations;
- offered apologies to Mr X and Ms Y;
- held a planning meeting and workshop to discuss the review of the way it handled the referral in March 2014.
Analysis of fault and injustice
- The stage 2 IO’s investigation and the stage 3 review were detailed and thorough and identified some significant faults in the way the Council dealt with both referrals to Family Services. The question for the Ombudsman now is whether the Council has properly recognised the impact of the faults found and offered an adequate remedy.
- Also there are two issues which Mr X and Ms Y say have not been fully investigated. These are the referral to the LADO and the advice given to the School.
- The Council has explained why it cannot shed any more light on why it decided to refer the case to the LADO when there were no grounds to do so. The records do not provide an explanation and relevant officers are no longer available. The Review Panel expressed concern at the lack of records about the reason for the decision. I do not consider further investigation into this issue is warranted by trying to locate the former members of staff to interview them. The Council has accepted it was at fault in making the referral. In my view the focus should now be on ensuring the Council has adequate procedures in place to ensure unfounded referrals will not be made in future.
- I have considered the complainants’ point about the advice the Council gave to the school. They have provided a copy of a letter from the Headteacher which they say shows the School would not have made the referral if it had spoken to them first. The letter confirms that the School would not have contacted the Council for advice if it had not known about the earlier referral in March 2014. But this is not the same as saying it would not have made the referral if it had spoken to the parents. The main reason the School contacted the Council was because it knew of the previous referral relating to the Facebook posting. This was a relevant consideration. Even if the Headteacher had spoken to Mr X and Ms Y it might well have decided this was sufficient reason to alert the Council. It was for the Council to decide how to respond to the referral and carry out any assessments necessary. Based on the information I have seen I could not conclude on balance that if the Council had advised the school to speak to the parents before deciding whether to make the referral, the School would have decided not to do so. So I could not say Family Services would not have been involved if the Council had given the correct advice.
- Nevertheless, given the faults found in the independent investigation, I do not consider that the Council has taken adequate steps to fully recognise the impact on Mr X and Ms Y. I do not find that the Council was at fault in deciding to carry out a child in need assessment following the referral in November 2014 because it wished to explore outstanding questions about the way the couple dealt with certain issues with their children. But the fact that these questions were still being raised was itself partly a result of failings in the way the Council dealt with the assessment in March 2014. As Mr X had not received a copy of the assessment he did not know until January 2015 that the report contained mistakes about the family’s willingness to co-operate. The Council’s view that they had refused a home visit and agency checks affected its response to the second referral. This, along with the incorrect referral to the LADO, the delay in closing the case, the lack of reassurance that one of the outcomes of a meeting with the social worker might be to close the case, and the incorrect recording of the nature of the concern raised, all added to the anxiety Mr X and Ms Y experienced and continued it for longer than necessary. Any investigation following a referral inevitably causes some anxiety, even if, as in this case, the Council decided to treat it as a child in need rather than a child protection case. However in this case there was additional distress caused because of the failings in the way the Council dealt with it. The Council has offered £150 to recognise Mr X and Ms Y’s time and trouble because of the delays in handling his complaint. But it has not offered anything to recognise this extra avoidable distress.
- Also the Council has confirmed it has amended its records in line with the stage 2 and stage 3 recommendations. But it has not offered Mr X an opportunity to correct any other records he believes are inaccurate.
- Nor do I consider that it has offered adequate assurance that it will not make similar mistaken referrals to the LADO again in future.
- To remedy the injustice caused, the Council has agreed to my recommendation to offer Mr X and Ms Y the opportunity to correct any further information on file they consider to be inaccurate. It will:
- consider their points about the information they say is inaccurate;
- if it agrees the information is inaccurate, correct the record accordingly (including in the case closing summary if necessary);
- if not, allow the complainants to place a statement on file disputing the information they consider is inaccurate;
- advise them they may make a complaint to the Information Commissioner’s Office if they are still not satisfied the records are correct.
- The Council was at fault in failing to provide an adequate remedy to Mr X and Ms Y for the impact of the failings identified in the way it handled concerns raised about their child. The Council has now agreed a suitable remedy and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman