Summary: The complainant alleges that the Council failed to provide sufficient support to her as a foster carer and subsequently recorded that she had been emotionally abusive to a foster child in her care. The Ombudsman asked the Council to refer the matter to the Local Authority Designated Officer for consideration. This has now been done. The Ombudsman finds that the Council failed to follow due process and that there is insufficient evidence to justify its finding that the complainant’s actions amounted to ‘emotional abuse’. The Council has agreed the Ombudsman’s recommendations to resolve the complaint.

The complaint

1. The complainant, who I shall refer to as Ms X, complains about the services provided to her by the Council when she was a foster carer. In particular, the Council failed to provide appropriate support to Ms X, wrongly maligned her reputation as a foster carer, following an allegation made about her, and wrongly described her actions as ‘emotionally abusive’.

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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 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)
3. 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)

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How we investigated this complaint

4. I have spoken to Ms X on the telephone and to the Local Authority Designated Officer (LADO). I have also received written documentation from the Council and from the complainant.
5. I issued a draft decision statement to both the Council and the complainant and I have taken into account the additional comments before reaching my final view.
6. The final statement will be sent to the Office for Standards in Education, Children Services and Skills (OFSTED) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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What I found

Legal and administrative considerations

7. Foster carers have to be fully assessed either by the Council or by an independent agency and are then approved by a Fostering Panel. Where an independent agency approves a person for fostering, that agency continues to have responsibility for monitoring and reviewing the foster carer. Where there are concerns about a foster carer’s ability to care properly, the agency (or the Council if it has approved the foster carer) will normally carry out a standard of care investigation.
8. In April 2011, the Fostering Services Regulations 2011 replaced the 2002 regulations. There is a duty on the fostering service to provide help, support and training to the carer. There were some amendments made to the Regulations in 2013
9. The National Fostering Minimum Standards says investigations into allegations against carers should be carried out quickly and should provide protection to the child but also support to the person subject to the investigation. Foster carers should be told in writing about any allegations against them and given information about the timescale for completing the investigation. They should also be told about the payment of allowance and any fee while investigations are continuing.
10. A council shall not allow the placement of a child with a particular person to continue if it appears to them that the placement is no longer the most suitable way of performing their duty. Where it appears to an authority that the continuation of a placement would be detrimental to the welfare of the child concerned, the council shall remove the child forthwith.
11. The LADO considers allegations about those working with children. They are responsible for the management and oversight of investigations into allegations that someone who works with children has behaved in a way that may pose a risk to children.

Care planning for looked after children

12. A council can accommodate a child, under 16, with the formal consent of the parents. Once the council accommodates a child, that child is considered a ‘looked after child’ (LAC).
13. A council should have an individual care plan for the child, and a process to review those plans. The planning about the child should be with the aim of safeguarding and promoting the child’s welfare, preventing drift and ensuring the work needed is carried out.
14. Where a child is in the care of the council, it must appoint an Independent Reviewing Officer (IRO) to oversee the care planning and ascertain the children’s wishes.
15. In March 2015, the Government issued statutory guidance Permanence, long-term foster placements and ceasing to look after a child. It stated that foster carers should be appropriately consulted and involved in decision making for children.
16. The Children Act 1989 Guidance and Regulations: Care Planning, Placement and Case Review states that, where a council wishes to terminate a placement, it must carry out a review of the child’s case and ensure that the views of all people have been heard, including the child as well as the parents, the child’s carer and other significant people.
17. The Guidance says a council should not move a child unless this is by agreement following a statutory review, it is clearly in the child’s best interests, the decision has taken into account the child’s wishes and feelings and the move is properly planned.

Child protection

18. Section 47 of the Children Act 1989 (the Act) provides that a local authority has a duty to investigate, where there is reasonable cause to suspect that a child is or is likely to suffer significant harm.
19. Working Together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children’ (March 2015, updated in 2018) provides guidance about child protection investigations for all agencies. Local authority social workers have a statutory duty to lead assessments which should be holistic in approach. Where concerns are considered valid, a multi-agency conference will decide if a child is suffering or likely to suffer significant harm and whether a child protection or a child in need plan is required.
20. There are four categories for registration: sexual, physical and emotional abuse or neglect. ‘Emotional Abuse’ is described as the “persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child’s emotional development”.
21. This Guidance says social workers and their managers should gather information systematically about the child and family’s history. Assessments should be transparent and open to challenge.

Background to complaint

22. Ms X was a foster carer for a teenager who was looked after by the Council. I shall refer to the teenager as Child B. Child B has some disabilities, in particular difficulties with time keeping, comprehension and attachment difficulties.
23. Ms X had been approved in April 2011 as a foster carer and since then she had successfully fostered seven children. Ms X also had her own teenage child living at home, who I shall refer to as Child C.
24. Prior to the placement of Child B, Ms X had been regarded as a good foster carer by the Council. As a result of the events of this complaint, Ms X eventually resigned as a foster carer because she felt humiliated by the Council’s finding against her as ‘emotionally abusive’.
25. Child B had lived with Ms X for nearly two years. Ms X asked for some extra support, as a single carer, because her daughter, Child C, was studying for her GCSEs. Ms X made this request formally during her fostering review. On 25 January 2016, Ms X explained that she was struggling to make time for Child C. Additional support was not provided.
26. On 29 March 2016, a member of the public referred Ms X to the Police, alleging that she was seen shouting at Child B and had made her run up and down the street.
27. Ms X explained that they had been on their way to collect another foster child for respite and that there was a certain rivalry between Child B and Child C. Child B was sulking in the car, so Ms X stopped the car and asked Child B whether she could stop sulking so that they could all enjoy the day out. Child B could not make up her mind about what she would do. So, Ms X suggested that she run along the pavement the length of 3-4 houses to see if that would help her to decide. Some residents in their front garden reported Ms X to the Police.
28. After this incident, Ms X says that they all had a nice day out.
29. On 30 March 2016, the Police visited Ms X, at home, and they spoke to Child B and to Ms X. The Police subsequently reported that there was no evidence of any physical contact. The Police stated that they had no welfare concerns for the children.
30. On 31 March 2016, Ms X telephoned her Supervising Social Worker from the fostering department. She explained the Police had been to see her and Child B and she accepted that she should not have raised her voice. Ms X explained she would like to obtain more support for Child B.
31. On 8 April 2016, there was a strategy meeting. A decision was made, in consultation with the IRO, to place Child B with a respite foster carer. Child B then decided to remain in this new foster placement. However, Ms X had stated that she wanted Child B to return to her care as Child B was regarded as part of the family.
32. Child B raised further concerns about Ms X. But Ms X could provide evidence to disprove them.
33. On 15 June 2016, the initial allegation was considered substantiated by the strategy meetings and Ms X’s action were referred to as ‘emotionally abusive’. The subsequent allegations by Child B about Ms X were considered unsubstantiated.
34. There then followed various discussions by the social workers about whether Ms X should remain registered as a foster carer. The matter was considered by the Council’s Fostering Panel on 22 November 2016.
35. The social work recommendation to the Fostering Panel was that Ms X should be de-registered. But the Panel’s majority recommendation was that this was not appropriate because Ms X had a good history as a foster carer, she had recognised her behaviour on the day of the incident was not appropriate, there was a lack of support to Ms X when she had raised concerns and that there should be further opportunities for Ms X to have additional training.
36. The Council’s Agency Decision Maker agreed not to terminate Ms X’s fostering status.
37. The Ombudsman decided that there was evidence of fault by the Council, primarily because Ms X had not had an opportunity to explain her side and that the Council’s Designated Officer (LADO) had not been as involved as required. The Council agreed to refer all the papers to its LADO service and also allow Ms X to explain her concerns directly to the LADO.
38. The Ombudsman then closed the complaint while the Council arranged the LADO’s consideration of the complaint.

The LADO’s consideration

39. The LADO service has conducted a review which involved looking at the Children’s Social Care records, the Fostering Services’ records and holding a meeting with Ms X.
40. The LADO identified that initial and review strategy meetings had been held. But a s47 enquiry, to consider whether the Child B had suffered significant harm, had not been triggered. The LADO service has also recognised that it had not been involved in these strategy meetings as it should have done.
41. At a review strategy meeting in 2016, the concerns about Ms X ‘were substantiated’ and the matter was referred to the Fostering Panel. However, the recent LADO review has identified that this conclusion lacked clarity in respect of what specific findings were being ‘substantiated,’ and on what evidence, or what this meant in respect of the risk of harm and expected conduct of a foster carer. Moreover, there was no s47 investigation and therefore the finding that the concerns were ‘substantiated’ had not been properly investigated in accordance with the required procedure.
42. However, the LADO’s recent review has concluded that it does not have the remit to overturn or set aside the Council’s initial findings, but it does say that, if it had been more involved at the time, it would have challenged the process.
43. The Fostering Panel did not withdraw Ms X’s fostering status because there were many positives in Ms X’s career as a foster carer and Ms X had acknowledged her shortcomings and a willingness to undertake further training as required. The Agency Decision Maker endorsed the recommendation. But Ms X resigned.
44. The LADO review has identified shortcomings in the way the allegation of Child B was investigated.

Analysis

45. It is not clear why the LADO was not fully involved in this case initially. But the Council has recognised that the LADO service should have been more involved, and steps have already been taken to ensure that this error does not recur. There are now more staff in the LADO team.
46. I am grateful for the careful consideration undertaken by the recent review by the LADO service. It has highlighted certain errors in the process which have implications for the Council’s earlier decisions about Ms X. The LADO service has also identified certain lessons to be learnt from Ms X’s complaint and it will ensure that these lessons are circulated among relevant staff and best practice is identified for the future.
47. Having now considered the additional information from the LADO review, along with the findings and information obtained from the Ombudsman’s previous investigation, my view is that the absence of a s47 investigation is a significant omission and that this must call into question the Council’s subsequent decision that the allegations about Ms X were ‘substantiated’ and, moreover, met the criteria of emotional abuse.
48. The Ombudsman cannot question the merits of decisions properly taken. But I am satisfied that there is sufficient evidence to say that the Council’s decision to regard Ms X’s actions as amounting to emotional abuse was not taken properly. It is clear that due process was not followed.

Final decision

49. I find that there were administrative faults in the way the Council considered the initial allegations made about Ms X. On the balance of probability, because of these faults, I consider that the initial finding against Ms X as ‘emotionally abusive’ cannot be relied upon.
50. I therefore consider that there has been fault by the Council causing Ms X an avoidable injustice.

Agreed actions

51. To resolve this complaint, the Council has agreed to:
1. set aside its initial finding that the allegation against Ms X should be substantiated and that her actions were ‘emotionally abusive’. However, I recognize the Council cannot delete its previous records. But, by recording that the Council’s original decision has been set aside, this should be sufficient to restore Ms X’s reputation as a reliable and good foster carer, who has also recognized that her actions on a particular day were not ideal;
2. apologise in writing to Ms X and recognize the avoidable distress caused to her by the Council’s faulty decision-making, and the time and trouble, which Ms X has been put to, to clear her name. The Council has agreed a payment of £350 to remedy this injustice;
3. the Council has already improved its LADO service and it will ensure more detailed discussions, in the future, take place with the Fostering Service concerning safeguarding allegations against foster carers. The Council has agreed to report back on the improvements it makes to its consideration of foster carers’ allegations to the Ombudsman. I recommend that it does so within two months of the date of the final statement.
52. As the Council has accepted the finding of fault and it has agreed the recommended actions, I have completed the Ombudsman’s investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman