Decision : Not upheld
Decision date : 19 Aug 2019
The Ombudsman's final decision:
Summary: Mr and Mrs X complain about the way the Council issued care proceedings for their son. They complain that the Council failed to respond to requests for information and that the Council handled their complaint poorly. Mr and Mrs X say this caused them extreme stress and Mr X had to take lots of time off work to attend court hearings. The Ombudsman does not find fault with the Council for the way it administered the care proceedings process or the way it handled Mr and Mrs X’s complaint. The Ombudsman will not investigate the parts of Mr and Mrs X’s complaint about the Council’s risk assessments and its decision to withdraw care proceedings because they are outside the Ombudsman’s jurisdiction. The Ombudsman will not investigate the part of the complaint about requests for information because Mr and Mrs X have already complained to the Information Commissioner’s Office.
- The complainants, who I refer to here as Mr and Mrs X, complain that:
- the Council’s decision to issue care proceedings about their son was misguided and flawed;
- the Council’s risk assessments were fabricated so it could reach the legal threshold for care proceedings;
- the Council dropped the case ten minutes before the hearing with no explanation;
- the Council has failed to respond to their Freedom of Information and Subject Access Requests; and,
- the Council handled their complaint poorly.
What I have investigated
- The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so (see paragraph 14).
- In this case, the Council told Mr and Mrs X in March 2017 it would consider applying for care proceedings for their son. These care proceedings were withdrawn in May 2018, after which Mr and Mrs X complained to the Council. They complained to the Ombudsman in January 2019.
- Mr and Mrs X could not have been expected to complain while court proceedings were ongoing. They complained to the Council shortly after the court proceedings were withdrawn. They then complained to the Ombudsman shortly after they received the Council’s response to their complaint.
- I have taken into account that the main part of Mr and Mrs X’s complaint was about the Council’s decision to initiate care proceedings. I have also taken into account when Mr and Mrs X complained to both the Council and the Ombudsman. For these reasons, I have decided to there are good reasons to exercise my discretion and investigate this complaint.
- I have investigated parts a and e of Mr and Mrs X’s complaint. The final section of this statement contains my reasons for not investigating parts b, c and d of the complaint.
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)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
- The Courts have said that we cannot investigate a complaint about any action by a council, concerning a matter which is itself out of our jurisdiction. (R (on the application of M) v Commissioner for Local Administration  EHWCC 2847 (Admin))
- The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
- I considered the information and documents provided by Mr and Mrs X and the Council. I spoke to Mr and Mrs X about their complaint. Mr and Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
- I have considered the Supreme Court ruling in the case of Williams v London Borough of Hackney.
- I have considered the relevant legislation, statutory guidance and policies, set out below.
What I found
What should have happened: legislation and guidance
- A Looked after Child is any child who is subject to a care order or accommodated away from their family by a local authority under section 20 of Children Act 1989. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours.
- Parents keep their parental responsibility even when a child is accommodated under a care order. They have a right to be told and consulted about all decisions, usually as part of a Looked After Child review.
- ‘Care proceedings’ mean a council has asked the court to decide who should care for a child. If a court grants a care order, this puts the child in the care of the council. It means parental responsibility is shared between the child’s parent/s or guardian and the council. The council is required to provide accommodation for the child, maintain and safeguard them, and promote their welfare.
- In 2009 and 2014, the government issued guidance for councils about care orders and what councils should do before a court hearing. This says a council should hold a legal planning meeting where it can obtain legal advice. A decision should be made on whether the threshold criteria for care proceedings have been met in principle. The council should decide if there should be a period of support for the family to stop proceedings, or if the proceedings should start immediately.
- There are two thresholds a council can use to start care proceedings: whether there is a risk to the child, or if the child is beyond parental control.
- The guidance says the council should send the child’s parent/s or guardian a letter to say care proceedings have been started.
- After this, the guidance says there should be a pre-proceedings meeting. In this meeting, the council should agree a revised plan for the child, confirm this in writing to the parent/s or guardian, and set out what the parent/s or guardian and council must do to safeguard the child. The plan will indicate steps to be taken and timescales. The parent/s or guardian should have legal representation at this meeting.
- The guidance says the aim of this pre-proceedings meeting is to reach an agreement on the proposed plan between family and council. It says there should be a conciliatory approach. It says the meeting will not decide on anything which fundamentally remains contested or disputed.
- The guidance says a council must:
- complete the application for care proceedings in line with certain requirements, making sure the information is clearly presented, succinct and analytical, using a council social work evidence template
- consider the parent/s capacity to instruct legal representation
- continue to undertake additional assessments which it feels are essential to inform the ultimate decision on the child’s needs
- submit the application to court
- notify the relevant organisation (CAFCASS) immediately to identify a guardian
Council’s complaints procedure
- The Council has a two-stage corporate complaints procedure. It says a complaint will be acknowledged within three working days. It says the manager of the service concerned will investigate the complaint and reply within 20 working days.
- It says if the issue is more complicated it may take longer, but the Council will let the complainant know if it needs more time to investigate and respond.
- It says if a complaint cannot be resolved at this first stage, the complainant can contact the Ombudsman.
- Mr and Mrs X have a son, B, who has autism and complex needs.
- In March 2017 at a meeting with the Council, Mr and Mrs X said they wanted B to be looked after in a full-time residential placement because of their difficulties managing him. Also, Mr and Mrs X felt B’s needs were not being met.
- Mr and Mrs X suggested B was placed at a particular school, out of the area, which could meet B’s needs. The Council said if it was going to consider a full-time placement, it would consider care proceedings in order to get a care order. Mr and Mrs X did not agree to this.
- In April and May, B’s social worker met with Mr and Mrs X and explained what it would mean if B was a Looked After Child under section 20 of Children Act 1989. She said the Council would share parental responsibility with them. She also said the application for care proceedings was not a criticism of their parenting.
- In June, at a meeting with the Council, there was further discussion about the Council seeking a care order because there were no plans to move B home in the short term.
- In July, the Council held a legal gateway panel meeting which discussed B’s presentation and his parents’ concerns about being able to keep him safe and manage his needs.
- Later in July, the Council gave Mr and Mrs X a pre-proceedings letter. This said the Council would begin care proceedings because of a recent change in case law about the use of voluntary accommodation under section 20 of the Children Act.
- At the end of July, B started his full-time placement at the school.
- In September, the Council held a pre-proceedings meeting with Mr and Mrs X. Mr and Mrs X had a specialist solicitor with them.
- In October, the Council got additional, independent legal advice from a senior barrister and subsequently issued care proceedings.
- In February 2018, a similar case was heard in the Supreme Court. (see paragraph 16).
- In May, Mr and Mrs X went to court for the care proceedings hearing. The Council applied to withdraw the case. The Court agreed, and the Council’s case was withdrawn.
- Mr and Mrs X complained to the Council in August. They complained about the way the Council had treated them. They said the Council fabricated grounds for care proceedings. They said the Council had failed to respond to their requests for information.
- Mr and Mrs X also complained that the pre-proceedings meeting was supposed to have been an opportunity to avoid care proceedings, but it was not. They said the Council did not explore any other alternatives to care proceedings. They said the Council withdrew care proceedings ten minutes before they were due to go into court with no explanation.
- The Council responded to Mr and Mrs X’s complaint in December. It apologised for the length of time taken to respond. It said this was because it needed to do a considerable amount of work to respond.
- The Council explained that family court guidance was that section 20 placements were intended to be a short-term solution, and its use for children under 16 should be time limited. It said it had reviewed B’s case along with other similar cases and decided to put the matter before court, for a court to decide, in line with the guidance.
- The Council said it “very much regrets the inevitably extreme distress and upset caused to your family by the decision to issue proceedings”. It said it had not taken the decision lightly. It said it got legal advice which supported the approach the Council took.
- The Council acknowledged that it would have been extremely difficult for Mr and Mrs X to accept the evidence the Council gave to court. It said it recognised that this can be upsetting for families. The Council apologised for the upset caused and said this was not its intent. It said it did not underestimate the impact this had on the family. It said it was an inevitable consequence of legal action.
- The Council addressed the part of Mr and Mrs X’s complaint about their requests for information. It then signposted Mr and Mrs X to the Ombudsman, and to the Information Commissioner’s Office for the part of their complaint about requests for information.
- Mr and Mrs X complained to the Ombudsman in January 2019.
Decision to issue care proceedings
- Mr and Mrs X complain that the Council’s decision to issue care proceedings about their son was misguided and flawed (part a of the complaint).
- The Council got independent legal advice about whether or not to issue care proceedings for B. The Ombudsman cannot challenge the Council’s decision to issue proceedings because this was based on independent legal advice, which I cannot question.
- There is a threshold that must be met for councils to issue care proceedings. It would have been decided in court if this threshold had been met. However, the Council applied to withdraw the care proceedings and the court agreed to this. As I have said in paragraph 10, the Ombudsman cannot look at the start of court action or what happened in court.
- I have considered what thought the Council gave to deferring B’s care proceedings in the light of the Supreme Court case which resulted in further guidance on this issue.
- The Council says it decided not to wait for the outcome of the Supreme Court case because delaying starting court proceedings could have led to lengthy delays. I do not find the Council at fault for this. The Ombudsman would criticise a council for delaying care proceedings.
- The Ombudsman can look at whether the Council followed the proper procedures for issuing care proceedings as set out in the guidance. I find that the Council followed the procedures.
- Mr and Mrs X complain that the pre-proceedings meting held in September 2017 should have been an opportunity to avoid care proceedings.
- The Council says that his meeting was used as a courtesy to advise Mr and Mrs X of the decision that had already been taken, and to explain why it made that decision.
- The guidance says that a pre-proceedings meeting will not decide on anything which fundamentally remains contested or disputed. Mr and Mrs X had already told the Council they did not agree to these proceedings.
- I do not find the Council at fault for not using the meeting as an opportunity to find a way forward. The Council made it clear there were no issues with Mr and Mrs X’s parenting that needed to be addressed, and there was no way forward to be found. The decision was taken on legal advice, not because of any concerns with Mr and Mrs X’s parenting.
- Mr and Mrs X complain that the Council handled their complaint poorly (part e of the complaint).
- Mr and Mrs X complain that there was a delay in the Council responding to their complaint. They complained in August, and the Council responded in December.
- The Council’s procedure says a manager will investigate and respond within 20 working days. It says if the complaint is complicated, it may take longer for the Council to respond. In which case, the Council should let the complainant know.
- The Council responded after 16 weeks. It says its complaints team maintained email contact with Mr and Mrs X while it was preparing its response. The Council accepts it took “longer than ideal” to respond, but says this was because of the complexity of the case, the number of staff involved, the overlap with court proceedings, and the need to involve the Council’s legal department in discussing and approving the complaint response.
- While it took the Council some time to respond to Mr and Mrs X’s complaint, I do not find the Council at fault. This is a complicated case and the Council’s response was lengthy and thorough. The Council kept Mr and Mrs X informed, which was in line with the complaints procedure.
- Mr and Mrs X complain that the Council did not address the part of their complaint about its treatment of them throughout the process.
- The Council’s complaint response explained what happened throughout the process and why it took the action it took. As outlined in paragraphs 47 and 48, the Council apologised for the upset and distress that the care proceedings inevitably had on Mr and Mrs X.
- Because of this, I find that the Council addressed the part of Mr and Mrs X’s complaint about its treatment of them. For this reason, I do not find the Council at fault.
- Mr and Mrs X complain that the person at the Council who signed the court papers was the same person who responded to their complaint. This person was the head of service for the relevant Council department. Mr and Mrs X say this means the person who investigated their complaint was therefore not independent and therefore it was not appropriate.
- I find that it is entirely appropriate for the head of service to sign court papers. The Council’s complaints procedure says that the manager of the service concerned will investigate the complaint. This is what happened.
- I find that the Council acted in line with its procedures, so I do not find the Council at fault. I find no fault in the way the Council responded to Mr and Mrs X’s complaint.
- I have completed my investigation and I do not uphold Mr and Mrs X’s complaint. This is because I have found no evidence of fault.
Parts of the complaint that I did not investigate
- Mr and Mrs X complain that the Council’s risk assessments were fabricated so it could reach the legal threshold for care proceedings (part b of the complaint). They also complain that the Council dropped the case ten minutes before the court hearing with no explanation (part c of the complaint).
- As I have said in paragraph ten, the Ombudsman cannot consider complaints about the start of court action or what happened in court. This includes decisions made at court. The decision to withdraw the case was made at court and agreed by the court, and is therefore part of court proceedings.
- The Ombudsman also cannot consider complaints about evidence which is presented to court. This includes reports drawn up by social workers in the course of care proceedings. So, any complaint about the accuracy or fairness of information contained within court reports is outside the Ombudsman’s jurisdiction.
- It is for these reasons that I cannot investigate parts b and c of Mr and Mrs X’s complaint.
- Mr and Mrs X complain that the Council failed to respond to their Freedom of Information and Subject Access Requests (part d of the complaint).
- As I have said in paragraphs 12 and 13, the Ombudsman normally considers it reasonable to expect someone to complain about information and data to the Information Commissioner's Office.
- In this case, Mr and Mrs X say they have complained to the Information Commissioner's Office about this part of their complaint.
- Mr and Mrs X have appropriately exercised their right to complain to the most appropriate body to consider this matter. For this reason, I will not investigate part d of their complaint.
Investigator's decision on behalf of the Ombudsman