Decision : Not upheld
Decision date : 02 Jul 2019
The Ombudsman's final decision:
Summary: Miss X complained the Council failed to take any action after a social worker held her wrists. She said the case records do not reflect what happened and the Council’s complaint process failed to consider her views. The Council was not at fault.
- Miss X complained the Council failed to take any action after a social worker held her wrists. She said the case records do not reflect what happened. Her advocate said the Council failed to follow the correct procedure after the incident.
- Miss X said she was left with red marks on her wrists and it has caused her on-going anxiety and worry.
- Miss X’s complaint has completed the statutory complaint process; however, she remains unhappy with the outcome of the stage three panel. She said the panel discounted her testimony over written records which she said are false.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), 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 Ombudsman expects a complainant to bring their complaint within twelve months of them becoming aware of the issue. I have exercised my discretion to investigate this complaint because of the complainant’s age at the time the alleged incident took place.
How I considered this complaint
- I discussed the complaint with Miss X’s advocate.
- I read the Council’s complaint correspondence including the stage 2 Investigating Officer’s report and the stage three independent panel minutes. I made enquiries of the Council and considered its response.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
- I have written to Miss X’s advocate and the Council with my draft decision and considered their comments.
What I found
The Children Act 1989 statutory complaints procedure
- This law sets out the procedure the Council must follow to investigate complaints made by looked-after children and children in need. The procedure involves three stages:
- Stage one - local resolution by the Council. This stage takes between ten and twenty working days.
- Stage two - an investigation by an independent investigator who will prepare a detailed report and findings to which the council must respond. The independent investigator does not line manage anyone involved in the complaint. If a complainant is still dissatisfied after stage two, they have the right to ask for their complaint to be considered at stage three. A stage two investigation for a complex case should take no more than 65 working days.
- Stage three - consideration by an independent review panel which may make further recommendations. A review panel should begin within 30 working days of the request.
- The Council removed Miss X from her mother’s care in April 2015 after she alleged that her mother had assaulted her. While the Police investigated the allegation, the Council at first placed Miss X with her step-grandmother, a Court Order then placed her in the care of her stepfather. Following trial at Court for assault, the jury found Miss X’s mother ‘not guilty’. In May 2016, Miss X returned to live with her mother.
- Miss X’s advocate complained to the Council on her behalf in October 2016. Miss X said:
- the Council’s case records were not a true reflection of what happened while she was in care and that the Council had failed to consider her wishes and feelings;
- after a supervised contact with her mother, a social worker had restrained her and made her wrists red while a male worker held her around the waist and threatened to call the Police;
- the Council failed to explain what a ‘looked after child’ was;
- the Council failed to acknowledge her concerns about her step-grandmother smacking her brother while in her care;
- the Council ignored her concerns about her step-grandmother threatening to throw her down the stairs; and
- the Council was wrong to remove her from her mother’s care.
Miss X’s allegation the social worker restrained her by grabbing her wrists
- Miss X said this happened after she had a supervised contact with her mother, Ms Y and maternal grandmother at Council offices. The Council records show the contact took place at the start of July 2015.
- Miss X said she tried to leave the building with her mother at the end of the contact and this was when the social worker restrained her by grabbing her wrists. She said a male staff member also held her around the waist and threatened to call the Police if she did not settle down. Miss X said she was left with red marks to her wrists after the incident.
- The social worker’s case records of the contact describe Miss X being upset at the end of the supervised contact and not letting go of her mother. A team manager came and helped the social worker by leading Ms Y away. The social worker’s records describe her putting her arms around Miss X’s middle and pulling her away from her mother. There was nothing to say she held Miss X by the wrists.
- Three weeks after the alleged incident, Ms Y telephoned a neighbouring council’s out-of-hours social care service about a decision to remove her children from her care. In this conversation, she said that a couple of weeks ago, Miss X had complained she had red marks to her wrists after a social worker restrained her. The neighbouring council passed this information to the Council.
- In response to my enquiries, the Council Officer responsible for supervising the then social worker, told me the steps taken at the time they received the allegation. They said they would have spoken to the social worker and any other members of staff who had contact with Miss X and checked the case records. However, there was no evidence the incident happened. If they had found evidence the incident had occurred, they would have made a referral to the Local Authority Designated Officer (LADO). This officer is responsible for responding to concerns that an adult who works with children may have caused them or could cause them harm.
How the Council considered Miss X’s complaint
- The Council received Miss X’s request for a stage two investigation in May 2017. The Investigating Officer investigated nine separate areas of complaint. This included the complaint where Miss X alleged the social worker grabbed her wrists causing redness. As part of the investigation, the Investigating Officer interviewed:
- Miss X and Ms Y;
- the team manager who intervened into the incident;
- the social worker’s then line manager (the social worker involved had left the Council); and
- Miss X’s step-grandmother.
- If a council has investigated something under the statutory complaint procedure, the Ombudsman would not normally re-investigate it unless it considered the investigation was flawed.
- The stage two investigation started in May 2017. The Council allocated an Investigating Officer and an independent person. I am satisfied that overall the Investigating Officer carried out a fair and thorough investigation. This is because:
- The stage two investigation carried out a thorough examination of the evidence held at the Council, interviewed officers involved, spoke to Miss X and Ms Y and made findings on each of Miss X’s complaint. This included Miss X’s complaint about being restrained by the social worker.
- The stage three review considered the adequacy of the stage two investigation, it spoke to Miss X and her advocate and reached findings on each complaint. The panel said it did not disregard what Miss X had said but that it was not possible to make a finding of fault on her word alone.
- The panel made a recommendation to the Council for Miss X to write a statement of her wishes and feelings to go in her case files. The Council has acted on this recommendation.
- Miss X complained the Council failed to take any action after a social worker held her wrists. She said the case records do not reflect what happened and the Council’s complaint process failed to consider her views. The Council was not at fault therefore I have completed my investigation.
Investigator's decision on behalf of the Ombudsman