Summary: Ms X complained that despite findings in her favour in her complaint about children’s social care services, the Council has not provided an adequate remedy. She says the Council has not done enough to recognise the impact on her and her family of the failings in the service. It is not possible for the Ombudsman to say the faults found were the cause of the distress she experienced through the break-up of her family. The Council has agreed a remedy for the uncertainty of not knowing what difference the faults might have made.

The complaint

1. Ms X complained that despite findings in her favour in her complaint about children’s social care services, the Council has not provided an adequate remedy. She says the Council has not done enough to recognise the impact on her and her family of the failings in the service.

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The Ombudsman’s role and powers

2. 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)
3. 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)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended). This includes reports written for court.
6. 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 unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

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How I considered this complaint

7. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I shared my draft decision with the Council and the complainant and considered their responses.

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What I found

Councils’ duties towards children

8. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. (Children Act 1989, section 17)
9. 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). A child protection enquiry will start with an assessment of the family circumstances and may move on through Strategy Meetings and a Child Protection Conference, which may decide on a Child Protection Plan.
10. 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 determining 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;
• further specialist assessments are required in order to help the authority to decide what further action to take;
• no further action is required.
11. The Council assesses the needs of children and families according to a ‘continuum of support and need' with four levels:
• Level 1: Universal – services available to all families such as health centres and children’s centres.
• Level 2: Vulnerable – Early Help - services providing more targeted support for children with emerging problems and a higher level of need.
• Level 3: Complex – Child in Need - children and families with complex needs that require statutory services involving more intensive or specialist support, such as for children with disabilities.
• Level 4: Acute – Child protection – support where the child or young person is experiencing or likely to suffer significant harm. Families where the problems are severe and have not improved through intensive or specialist support.

What happened

12. Ms X has two children, B, now aged 11, and V, now aged six. B’s father is Mr C and V’s father is Mr W. Ms X is no longer living with either of the children’s fathers.
13. The nurse at B’s school and an Educational Psychologist were involved with B from early 2013 because of concerns about his behaviour. In 2014 and again in mid-2015 Ms X had some targeted support from ‘Families for Change’. At that point following concerns Ms X raised about B’s mental health, and after unsuccessful attempts to refer him to the Child and Adolescent Mental Health Service (CAMHS) over the previous two years, there was a referral to the Council’s Early Help Team. This resulted in an assessment and some support with parenting skills. Ms X undertook a parenting programme. The Council closed the case in August 2015.
14. In January 2016 B’s school noted a marked deterioration in his behaviour. CAMHS rejected a further referral citing “the unstable situation at home” as the reason. At this point Mr X was having difficulties in her relationship with V’s father, and they separated shortly afterwards.
15. During April and May 2016 B was showing aggressive and violent behaviour. B’s school made a referral to Children’s Services with concerns about Ms X’s ability to cope with B’s behaviour. Ms X reported that V’s father had been physically and emotionally abusive towards B. Ms X asked for support from the Early Help Team. The Council held a Strategy Meeting and decided not to start child protection enquiries but to leave the support at Early Help level.
16. In June 2016 Ms X called the police twice because of incidents of threatening behaviour by B. The police visited B to discuss his behaviour with him and made a referral to Children’s Services.
17. In August 2016 the Families for Change worker working with Ms X made a safeguarding referral to Children’s Services because of reports by Ms X about incidents relating to her care of the children. The Council considered there was a risk of significant harm to the children. On initial assessment of the case and after contacting Mr C and Mr W, both children’s fathers agreed to take their children to stay with them for a short while.
18. A social worker visited Ms X to carry out an assessment in early September 2016. Ms X disagreed with the social worker’s view about inconsistent parenting and felt the Council was not providing her with enough support. During September there were incidents of B’s aggressive and violent behaviour outside the home. Ms X reported the incidents to the police, B’s school and Children’s Services Out of Hours service. Ms X told B’s school she needed more help from social care. The social worker visited B at school to discuss the situation with him.
19. One night in mid-September Ms X contacted the police and the Out of Hours service as B had tried to attack her and had caused damage in the home. The following day Ms X asked the Council for respite for B. The social worker agreed to contact B’s father about providing support with B. CAMHS offered an emergency appointment and advised Ms X to engage in parenting work.
20. Ms X asked the Council for help after two further incidents, and wanted the Council to take B into temporary care. There were two Child in Need visits when B was violent towards Ms X and attacked the social workers. The police were called and took B to his father’s home.
21. At the end of September 2016 there was another violent incident when B attacked Ms X and damaged her home. She called the police. After the social worker became involved B’s father agreed to take his son into his care. The police took him to his father’s home under a Police Protection Order. The Council held a Strategy Meeting and decided to progress to a Child Protection Conference.
22. The following day the Council told Mr W what had happened and he agreed to take V into his care. He collected his son from school. Neither B nor V have returned to live with Ms X since then.
23. Over the next few months the child and family assessment continued. The Council held Child in Need meetings and agreed contact arrangements for Ms X with the children. The social worker continued to see B to discuss his wishes and feelings. Medical professionals felt B should be seen by CAMHS. The Council completed the assessment in mid-December 2016.
24. From January 2017 there were private family law proceedings and the Council started public law proceedings. Mr C and to Mr W both successfully applied for Child Arrangements Orders for their children to live with them. The court agreed contact arrangements for Ms X with her children. The Council applied for an Interim Supervision Order to oversee the care of the children.
25. Also in January 2017 the Council carried out a review of Ms X’s family’s case. This raised concerns that referrals to Children’s Services in May 2015 and May 2016 did not progress. The reviewing officer felt B and V should have become Children in Need at those points. The Council agreed there had been “missed opportunities to intervene”. The view was that social workers should have carried out 1:1 work with B earlier.
26. Between January and March 2017 CAMHS said it would not accept any more referrals for B until his home situation was more settled. However as part of the legal proceedings the court ordered psychological assessments of B. In 2018 he received a diagnosis of Oppositional Defiance Disorder and Attention Deficit Hyperactivity Disorder. I understand that CAMHS is now involved with B.

Children’s social care complaint

27. Ms X made a formal complaint to the Council which it considered under all three stages of the children’s social care complaints procedure. Her complaint included the following allegations.
• She had repeatedly asked for help and support from Children’s Services from 2014 onwards but the Council had failed to carry out a full assessment of B’s needs or offer adequate support.
• There was a lack of balance in the parenting assessments. She said the Council had not carried out the same level of assessment with the children’s fathers as with her.
• The Council did not fully explain to her what her parental rights were when it asked V’s father to collect him and take him to live with him.
28. The outcomes she wanted to achieve included:
• an apology and explanation for any failings found
• amendments to the records where they are factually inaccurate
• a full assessment of B’s needs
• reimbursement of legal costs her parents had incurred on her behalf to support her in the court proceedings.
29. By the end of the complaints process the Council accepted the conclusions of the stage 3 Review Panel. These were that:
• the Council had missed opportunities to provide Ms X’s family with support
• the Council had not always communicated in a transparent and consistent way with Ms X about decisions and actions taken on her case.
30. At stage 2 the Investigating Officer (IO) and Independent Person (IP) said they were concerned about the number of missed opportunities by the Council where it had been asked to intervene in B’s life to improve his family situation. They were concerned that the Council had developed plans at the assessment stage but did not follow them up when transferring them to the local teams. They considered this would have provided evidence of the children’s views, the potential family support and whether child protection enquiries were needed.
31. The Council accepted the Review Panel’s recommendations in relation to better training of staff and learning from the complaint. The IO at stage 2 said it was for the Council to consider Ms X’s request for financial compensation for her parents. But she said “because of the actions of the local authority [Ms X] has needed to be supported financially by her parents and therefore because of the failings of the local authority this should be looked at favourably”. The IP recommended that the Council should offer Ms X “financial compensation for the considerable delays in investigating her complaints”. She also recommended financial compensation if the Council agreed with the complaints upheld in the stage 2 IO’s report. The stage 3 Panel did not recommend a financial remedy and the Council did not offer one.
32. Ms X complained to the Ombudsman. She said she had received a letter of apology from the Council and an assurance that it would learn from its mistakes. However she said this did not make up for the trauma the Council had put her and her family through. She complained that the Council had failed to provide her and her family with enough support. Instead she said it had decided her children could not live with her without providing her with any good reason. She said the Council had provided biased and misleading reports for court resulting in the family being split apart. She felt that with proper support this would not have happened. Ms X said she wanted the Council to:
• re-write the reports
• take disciplinary action against staff involved
• pay her compensation.
33. Ultimately Ms X wants her children to return to live with her but she is aware this is not something that can be achieved through an Ombudsman’s investigation. I understand the matter has returned to court.

Analysis –has the Council provided an adequate remedy?

34. The Ombudsman has no power to investigate reports written for court and cannot recommend that the Council re-write them.
35. Nor can the Ombudsman get involved in decisions about disciplinary action. In any event Ms X has made a complaint to the Health and Care Professions Council. This is the most appropriate body to consider complaints about social workers’ professional conduct.
36. I have considered Ms X’s view that the Council should offer a financial remedy for the impact of its failings on her family.
37. In response to the Ombudsman’s enquiries, the Council explained how it had considered the question of a financial remedy. It said its approach is to offer this where appropriate when the complainant seeks it as one of the outcomes they want from the complaint. In this case the only request for compensation was for the Council to reimburse solicitors’ fees to her parents. The Council said it looked at this when giving its decision at stage 2 after considering the IO’s report. It said it did not consider it appropriate to make a payment. This was because once the Council made a public law application Ms X had access to free legal advice and representation. Up to that point it was a private family law matter between the parents.
38. The Council also said Ms X had not asked for a payment to recognise distress or the impact on her of the Council’s actions. It said neither the IO nor the stage 3 Panel had recommended this. In any event it said it did not consider her distress was a result of the Council’s failings. Rather it was because of decisions made about the care of her children as part of the legal proceedings.
39. As the Council says, the only payment Ms X asked for originally was to cover the solicitor’s costs her parents paid. But this does not prevent the Council or the Ombudsman considering whether there should be a financial remedy for any other impact of the failings found in the investigation. In this case the Council accepts there were missed opportunities to intervene and offer support to the family earlier. However I do not consider it is possible to determine what would have happened if the Council had offered more support, or whether there would have been a different outcome.
40. The missed opportunities referred to go back as far as 2014 and 2015 and the roots of B’s troubled behaviour go back even further. There are many factors to consider in looking at whether events might have taken a different turn, such as relationships within the home and between the parents, and the CAMHS decisions on several occasions not to accept a referral for B and offer him counselling. I cannot know what effect it would have had if CAMHS had accepted a referral. The Council did offer some support and were working with the family at Early Help level. It also referred Ms X to parenting courses, which she attended. Ms X has not identified any particular social care support she was looking for that might have prevented B’s violent behaviour. It is not possible to say that if the Council had decided B should have been treated as a Child in Need earlier or if he had been on a Child Protection Plan this would have prevented the escalation of his violent and aggressive behaviour in 2016 that ultimately led to him being removed from Ms X’s care under a Police Protection Order.
41. The subsequent legal proceedings resulted in court orders for the children to live with their fathers and have contact with Ms X. Ms X had legal representation throughout and had an opportunity to put her own case and challenge the Council’s views. The Ombudsman cannot interfere with the court’s findings. It is not possible to conclude with better support either the proceedings would not have been brought or that the outcome would have been different.
42. The Ombudsman can only recommend a financial remedy where the injustice to the complainant is a direct result of fault by the Council. In this case I cannot say the legal proceedings were a direct consequence of the missed opportunities to provide assessments and support. Therefore I do not consider I have grounds to recommend that the Council cover Ms X’s parents’ legal fees.
43. It is clear Ms X experienced great distress through B’s behaviour and the break-up of the family. But I could not reasonably conclude on the evidence I have seen that this was a direct result of the Council’s failings. So I do not consider it appropriate to recommend a payment to recognise this distress.
44. Nevertheless the Council has accepted it missed opportunities to fully assess and provide support for B’s needs. Mrs X is left not knowing whether this might have had a positive impact on him. This uncertainty is an injustice in itself and in my view warrants a remedy.
45. I do not propose to recommend any remedy other than an apology for the delays in carrying out the complaint investigation. The IO explained the reasons for the delay in her report. The Council was not responsible for all the delays. Some related to difficulties in getting information from other bodies such as CAMHS, the police, and B’s school, as well as an officer who had left the Council. In any event Ms X has not complained about any impact of the delay.

Agreed action

46. The Council has already apologised for the missed opportunities to assess and provide support for B’s needs. It has now agreed to pay Ms X £300 to recognise the uncertainty and anxiety of not knowing what impact this might have had. It should make the payment within one month of the final decision on this complaint.

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Final decision

47. I have found that the Council has not fully remedied the impact of the faults found by the investigation into Ms X’s complaint. I am satisfied with the action it has now agreed to take and so I have completed my investigation.
48. 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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Investigator's decision on behalf of the Ombudsman