Decision : Upheld
Decision date : 14 Feb 2020
The Ombudsman's final decision:
Summary: Miss X complained the Council failed to investigate her safeguarding concerns about a foster carer who cared for two of her children between July 2016 and March 2017. The Council was at fault. It failed to adequately investigate Miss X’s concerns and to properly refer some of the matters to the Local Authority Designated Officer in another council area, in line with relevant guidance and policy. The Council also took two years to complete the statutory children’s complaints process. The Council agreed to apologise and pay Miss X a total of £550 to recognise the injustice caused to her. It also agreed to review some of its internal processes.
- Miss X complained the Council failed to investigate her safeguarding concerns about a foster carer who cared for two of her children between July 2016 and March 2017. Miss X said the Council:
- Failed to adequately investigate and consider safeguarding complaints she made about the foster carer between July and October 2016.
- Failed to investigate the foster carer following a court hearing in March 2017 after a judge ordered the immediate removal of the children from their care.
- Failed to refer the judge’s decision to Council Z.
- Significantly delayed investigating her complaint under the statutory children’s 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 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)
- 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)
- 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. As Miss X first approached the Ombudsman in 2017 and the matter is still ongoing, I have used my discretion to investigate matters from July 2016 onwards. (Local Government Act 1974, sections 26B and 34D, 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)
- 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.
How I considered this complaint
- I spoke to Miss X about her complaint.
- I considered the Council’s response to my enquiry letter.
- I considered the findings of the stage 2 investigation and the stage 3 review panel.
- I considered the Council’s policy titled ‘Allegations against foster carers’.
- I wrote to Council Z where the foster care lived and considered its comments and the information it provided me.
- Miss X and the Council had an opportunity to comment on my draft decision. I also sent a copy of the decision to Council Z for its comments. I considered all comments before making a final decision.
What I found
Looked after children
- A Looked After Child (LAC) is any child who is subject to a care order or accommodated away from their family by a council under section 20 of the Children Act 1989.
- The council is responsible for the safeguarding and wellbeing of all looked after children in its care. There are a number of ways that children become ‘looked after’ by the council. One is when a court grants an interim care order. This is when the judge decides to place the child in the care of the council before making a final judgement.
Independent Reviewing Officer
- Every looked after child must have an Independent Reviewing Officer (IRO), a qualified and experienced social worker whose role is to oversee how well the council does its job as a corporate parent. The IRO is there to ensure the council is meeting the child’s needs and the child’s voice is being heard.
- The council has a duty to investigate if it has reasonable cause to suspect that a child who lives in its area is suffering, or is likely to suffer, significant harm. This duty comes under Section 47 of the Children Act
- The government has issued guidance to councils managing cases where there are concerns about a child’s safety or welfare.
- The council cannot investigate to see if there is a problem unless it has reasonable cause to suspect a child is suffering harm or is likely to suffer harm.
Handling allegations and concerns against foster carers
- The Local Authority Designated Officer (LADO) is a person responsible for the management and oversight of investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children. The LADO brings together senior representatives from the employer (in this case, the fostering agency), social workers and the Police.
- The fostering minimum standards say “Allegations against people that work with children or members of the fostering household are reported by the fostering service to the LADO. This includes allegations that on the face of it may appear relatively insignificant or that have also been reported directly to the police or Children and Family Services.”
- One of the standards for fostering services is to “ensure that a clear distinction is made between investigation into allegations of harm and discussions over standards of care. Investigations which find no evidence of harm should not become procedures looking into poor standards of care - these should be treated separately.”
- The Children Act guidance says the social worker should inform the IRO if they are concerned the foster placement is affecting a child’s welfare.
- The Children Act guidance says it is a matter of professional judgement for the social worker to decide whether the child’s welfare is not being adequately safeguarded.
The Council’s policy titled ‘Allegations against foster carers’
- The Council’s policy states any person who receives information or suspects that a child has suffered or is suffering harm in a foster placement must immediately inform the child’s social worker or their manager. The child’s social worker or manager must then inform the LADO. If the foster carer lives outside the Council’s area, then the LADO must liaise with the LADO from the relevant council where the foster carer lives. The LADO will decide whether to consult with relevant professionals or may decide there is no further action for them to take.
- The policy says a complaint may involve a view about the carer’s approach to the care of a child or the way in which they respond to a child’s behaviour, or day to day issues regarding fostering practice. It says complaints such as these might be investigated under ‘standards of care’. It says the fostering team manager must be informed of any standards of care issues.
- The policy says standards of care might include:
- An incident or minor physical chastisement
- Inappropriate verbal chastisement
- Incidents indicating inadequate supervision
Statutory complaints procedure
- There is a formal procedure, set out in law, which a council must follow to investigate certain types of complaint. It involves three stages:
- Local resolution by the council (Stage 1);
- an investigation by an investigator who will prepare a detailed report and findings (Stage 2). The council then issues an adjudication letter which sets out its response to the findings; and, if the person making the complaint requests it;
- an independent review panel to consider their representations (Stage 3).
- Miss X is the mother of four children who in 2017 were aged between 2 and 10 years old. The three older children had been known to the Council since 2013 after it made them subject to child protection plans because of a risk of emotional harm as a result of exposure to domestic violence. In 2016 the Council initiated court proceedings requesting the immediate removal of all four children from Miss X’s care after what it described as a rapid deterioration in her parenting.
- The court granted an interim care order in July 2016 and the four children were placed separately in pairs into foster care. The two youngest, G and F, were placed together with ‘the foster carer’ who lived in Council Z’s area.
- Between July 2016 and March 2017, Miss X reported safeguarding concerns to the Council following her contact visits with G and F. She reported that they had sustained injuries which she said were inflicted by the foster carer. Miss X formally complained to the Council in October 2016 that it was not taking her allegations seriously. Although the Council acknowledged Miss X’s complaint and created a reference number, it did not investigate the complaint at stage1.
- In March 2017, following a further court hearing, the judge ordered the immediate removal of G and F from their foster carer. The judge’s decision was based on information which suggested the children were suffering, or likely to suffer immediate emotional harm by remaining in their current foster placement. Following the court hearing, G and F remained subject to the interim court order and were placed to live with another family member.
- Miss X approached the Ombudsman in July 2017 because she said the Council had failed to consider or respond to any of her complaints. The Ombudsman asked the Council to investigate Miss X’s complaint at stage 2 of the statutory children’s complaints procedure. The Council agreed to do so and completed its stage 2 investigation in August 2018. The investigator considered a number of complaints at stage 2. Miss X remained unhappy in particular with its findings on how the Council handled her safeguarding reports and formal complaint. The investigator partially upheld this element of the complaint. I have not considered the of the stage 2 investigation.
- Following the stage 2 investigation the Council’s adjudicator wrote to Miss X and agreed that she did raise four specific concerns between July and October 2016 around G and F. In these concerns, Miss X suggested the children sustained injuries caused by the foster carer. However, the Council said it investigated all of Miss X’s concerns and referred them to the LADO at Council Z for their consideration. The Council said on each occasion, following liaison with the LADO at Council Z, the outcome was to take no further action. Therefore, it did not uphold Miss X’s complaint. The Council apologised for failing to deal with Miss X’s complaints at stage 1 when she raised them in October 2016. It also apologised for the delays in carrying out the stage 2 investigation.
- Miss X was unhappy with the outcome of the stage 2 investigation and asked the Council to escalate her complaint for a stage 3 panel to consider. The stage 3 panel took place in June 2019. The panel said there was a lack of clarity in how the Council investigated Miss X’s reports, and how it fed its conclusions back to her. It was also critical of the Council because it should have had clear evidence available as to the outcome of its investigations. Because of this lack of clarity and evidence, it was unable to reach a finding. The panel asked the Council to consider its ‘no findings’ as an unacceptable conclusion.
- The Council wrote to Miss X with its final response in July 2019. It noted the panel’s comments; however, there is no evidence it considered them any further. The Council said it would take the learning from Miss X’s complaint forward to improve social work practice.
- Miss X also complained to the Council that it had failed to investigate the foster carer following the judge’s decision to remove the children in March 2017. The Council said it had referred the matter to the LADO at Council Z and it was a matter for them to consider. The Council said if Miss X had ongoing complaints about this, she should complain directly to Council Z.
- The records show Miss X wrote to the LADO at Council Z and provided them with a copy of the court order which showed the judge’s decision. The records show the LADO at Council Z was unaware of the judge’s decision. They wrote to the Council and asked it for an explanation of why it did not refer the matter to them in March 2017, or indeed the fostering agency which employed the foster carer at the time. They said the foster carer had continued to foster children and was now employed as foster carer by Council Z.
- The Council provided the LADO at Council Z with a copy of an email it sent Miss X in February 2019. The Council said it did not agree with the judge’s decision and did not agree there were risks which warranted G and F’s immediate removal from the foster carer. The Council said the decision not to further investigate the foster carer was a matter for the Council. It said that decision was reasonable given the view of its own assessment of the care the foster carer provided G and F.
- In light of the information about the judge’s decision in March 2017 the LADO at Council Z carried out its own investigation into the foster carer which substantiated Miss X’s concerns. Council Z said it will present the foster carer to the fostering panel in March 2020 with the recommendation that they are deregistered as a foster carer.
- Miss X remained unhappy and complained to the Ombudsman.
Miss X’s complaints
- Where complaints have completed the statutory procedure, the Ombudsman does not normally re-investigate the complaint itself. The exception would be where there was evidence of fault in how the stage 2 or stage 3 stages were conducted.
- Following the stage 3 panel Miss X asked the Ombudsman to consider specific elements of her complaint which she was still dissatisfied with. I have reached some different conclusions to those of the stage 2 investigator and the Council’s adjudication officer. I have also considered the Council’s overall handling of Miss X’s complaints and its actions following the court hearing in March 2017.
The Council’s handling of Miss X’s safeguarding reports between July 2016 and March 2017
- The statutory process considered four specific safeguarding concerns Miss X raised. The Council concluded it had referred the matter to the LADO, investigated the concerns each time and decided to take no further action. However, I have not seen adequate evidence which supports this assertion. While the records show the Council liaised with the LADO at Council Z on two occasions and decided to take no further action, I have not seen evidence to show how it considered the other two concerns. The Council has provided no clear investigative records to show how it considered any of the safeguarding concerns and there is no clarity on how it reached an outcome for the allegations. If the Council decided the concerns did not meet the threshold for a LADO referral or any further action, I would expect a recording to show the rationale. There is also no clear evidence of how it informed Miss X of the outcome of each concern.
- The Council is the placing authority for F and G who were its looked after children. There is a lack of supporting investigative records, lack of detailed LADO notes and a lack of clarity in how it dealt with Miss X’s reports. There is no recorded consideration of interviewing the foster carer or whether it liaised with its fostering service. There is no satisfactory, clear outcome for any of Miss X’s reports. This is supported by the stage 3 panel findings together with the Council’s failure to consider the panel’s recommendation to reconsider its findings. This leads me to conclude Miss X’s reports were not properly considered in line with the relevant guidance and that is fault. While I cannot say the outcome would have been any different, the fault caused Miss X distress and uncertainty which is reflected in her persistence in pursuing this matter.
The Council’s actions following the judge’s decision in March 2017
- While the Council disagreed, the judge’s view based on evidence they heard was F and G ‘were suffering, or likely to suffer immediate emotional harm’ by remaining with the foster carer. In line with the relevant guidance the Council should have informed both Council Z and the fostering agency. They did neither and that was fault.
- However, the court order from March 2017 made it clear that although the judge considered it necessary to remove F and G from the foster carer, they made no finding in relation to the evidence presented, or in relation to the care provided by the foster carers. There are no clear records of how the Council considered that evidence or why it decided not to investigate the matter any further. That was fault.
- I do not consider the faults identified in paragraphs 48 and 49 caused Miss X further injustice because her children were already removed from the foster carer.
- The lack of referral meant the foster carer continued caring for children and was subsequently employed by Council Z without proper consideration of the evidence presented at court. Council Z is recommending the foster carer is deregistered; however, this process is ongoing so I should not comment on it any further.
The Council’s handling of the statutory children’s complaints procedure
- Miss X first formally complained to the Council in October 2016 and it never formally responded to her at stage 1. That was fault and the Council apologised to Miss X in the stage 2 investigation for the frustration and uncertainty it caused her.
- The Council agreed to carry out a stage 2 investigation into Miss X’s complaints in July 2017. It did not conclude stage 2 until August 2018. That was significantly outside the statutory timescales and was fault. Following the stage 2 investigation it agreed to escalate Miss X’s complaints to a stage 3 panel. The stage 3 panel did not consider the complaint until June 2019. Again, that was significantly outside the statutory timescales and is fault. This meant the statutory process took the Council over two years complete. The delays caused Miss X unnecessary distress, frustration, uncertainty and time and trouble.
- Within one month of the final decision the Council agreed to:
- apologise and pay Miss X £300 to recognise the unnecessary distress, frustration, uncertainty and time and trouble caused by failing to adequately consider and investigate the safeguarding concerns she reported about her children’s foster carer between July 2016 and March 2017.
- apologise and pay Miss X £250 to acknowledge the distress, uncertainty, frustration and time and trouble caused by failing to deal with her complaint at stage 1 and for the significant delays in the statutory children’s complaints process.
- provide the Ombudsman with an update of the learning it has taken forward to improve social work practice as outlined in its stage 3 response letter.
- carry out a review of how it deals with safeguarding concerns about foster carers. The review should include its process for investigating those concerns and how it records, documents and provides an adequate outcome of its decisions. The review should include clarity on how it deals with concerns about foster carers who care for its children in other council areas.
- review its handling of the statutory children’s complaints process to ensure similar delays do not happen in the future. It should review the significant delays in completing stage 2 and stage 3 of the process and its failure to provide an adequate response to the stage 3 panels ‘unacceptable no findings’ on Miss X’s complaint.
- I have completed my investigation. The Council was at fault and it agreed to my recommendations.
Investigator's decision on behalf of the Ombudsman