Summary: Mr X complained about the Council’s child safeguarding actions concerning his family. He said these caused him and his family avoidable distress and financial hardship. There was fault by the Council causing some avoidable distress to Mr and Mrs X. The Council should have considered Mr X’s complaint through all three stages of the statutory children’s complaint procedure. The Council has apologised to Mr X and made service improvements to avoid repetition of the faults. It has agreed to pay Mr and Mrs X £500 as token remedy for avoidable distress and to review its complaint handling to ensure it follows statutory guidance.

The complaint

1. Mr X complains about the Council’s safeguarding actions when he was charged with offences he was later found not guilty of. He says officers behaved throughout as if he was guilty and acted unprofessionally. This caused him and his family avoidable distress and financial hardship.
2. Mr X says the Council forced him and his wife to sign an unfairly restrictive contact arrangement causing them distress and stopping him running his business.

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The Ombudsman’s role and powers

3. 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)
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. 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 our final decision with Ofsted.

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How I considered this complaint

6. I spoke to Mr X about his complaint.
7. I asked the Council questions and considered its records.
8. I gave the Council and Mr X the opportunity to comment on my draft decision and considered any comments received.

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What I found

Legal and policy background

9. 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). The Council should then send an adjudication letter, responding to any recommendations from the stage 2 investigation. If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
10. Statutory guidance says that alternatively, after a stage 2 investigation and adjudication, the council and complainant can agree to make an early referral to the Ombudsman, without going through a stage 3 review. This can only happen where the stage 2 investigation has delivered:
• A very robust report;
• A complete adjudication;
• An outcome where all complaints have been upheld;
• The council is providing a clear action plan for delivery; and
• The Council agrees to meet most or all of the complainant’s desired outcomes regarding social services functions.
11. 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.
12. Written agreements are used by council children’s social care teams to set out arrangements to ensure safety and wellbeing of children during periods of assessment and/or intervention. This council says they should be used for short term arrangements to set out how parents or carers should work with the Council, including any restrictions, explaining their responsibilities for care and safeguarding of children.

Background to the complaint

13. In 2015 the police charged Mr X with several offences of sexual assault. Two years later he was found not guilty of all charges. During the intervening two years the Council carried out safeguarding actions for his two children. It put them on Child in Need and then Child Protection Plans. At the outset, Mr X signed an agreement that he would not have unsupervised contact with his children, or with any other children. The agreement that remained in place until the court decision, said his wife, Mrs X, would supervise all contact between Mr X and his children.
14. Mr X’s business was registered by Ofsted who suspended registration when he was charged. He appealed and was successful but did not restart the business. Mr X says this was because the written agreement he had signed with the Council made it impossible to carry out the business (as he could not have unsupervised contact with children).
15. When a Court acquitted Mr X on all charges the Council stopped child protection proceedings and closed the case.

Mr X’s complaint and Council investigations

16. Mr X complained to the Council about its actions in July 2017. He said the Council had emotionally abused the family causing them emotional and financial damage. After meetings and further clarifications, the council replied in September. Mr X then set out his complaint in more detail. The Council and Mr X met in November 2017 to further clarify the complaint. The Council said it would respond by December 2017. It did so, after a short delay in January 2018. Mr X was not satisfied with the reply and complained at stage 2 of the children’s statutory complaint procedure.
17. Mr and Mrs X’s complaint was, in summary, that the Council had:
• Wrongly forced them to sign the agreement restricting contact, causing the family avoidable distress. It had not kept the agreement under review.
• Behaved throughout as if Mr X was guilty of the charges and not followed required professional standards. Its officers had lied, insulted and patronised the family.
• Caused avoidable emotional distress and financial hardship to the family because of how it handled the case.
18. They wanted the Council to reflect on what it had done, apologise, and explain what it had learnt. They wanted the Council to give them a financial remedy.
19. The Council appointed an investigating officer and independent person. The investigating officer was independent from the line management of the services concerned. The independent person agreed with the conduct, findings and outcome of the investigation.
20. The investigating officer interviewed officers responsible for the case. Several of the officers, including a manager, involved in the complaint were no longer employed by the Council and so the investigating officer had to rely on written records for certain matters. They attempted to contact other officers and interviewed those they could. The officer reached several of their findings on the balance of probabilities.
21. The stage 2 investigation finished in January 2019. The Council apologised for the delay in response. In summary the investigation report found that the Council:
• Had not been clear enough about the written agreement or how it would be reviewed. The Council had no procedure controlling the use of such agreements or their review. It had not reviewed the agreement to see if it was still appropriate during the period.
• Had not properly considered what would happen if Mr X was found not guilty. Whilst it had not assumed Mr X would be found guilty, it had not planned effectively for a not guilty verdict.
• Had taken an overly rigid view about whether other family members and friends could have supervised Mr X’s contact with children to ease the pressure on Mrs X.
• Had not always stuck to statutory timescales when making child in need and child protection visits. It had taken too long to reply to Mr and Mrs X’s questions and not given them an adequate standard of service. But its decisions about when to visit were based on its assessment of the family situation.
• Had wrongly referred Mr X to a charity that only worked with convicted sex offenders or people who accepted guilt. This was not appropriate given Mr X’s assertion of his innocence throughout.
• Had incorrectly considered Mr and Mrs X’s appeal against placing their children on child protection plans. Records did not show its officer passed the request for an appeal to their line manager as they should have done.
• Had mishandled an interview in Mr and Mrs X’s house when the allegations were first made. There was no record the officer, who no longer worked at the Council, had been appropriately trained or supervised.
• Had not communicated properly with the police during their investigations. There was no detailed record of what was discussed with the police or what would happen because of this contact.
22. It did not uphold Mr and Mrs X’s complaints that the Council:
• Had told them it would take away the children if they did not sign the agreement. It had been entitled to advise what might happen if they did not agree to contact arrangements.
• Had invited Mr X to a meeting and told him not to bring solicitors. Case notes indicated it had told him he could have independent legal advice.
• Had not used pre-proceedings through the family court. It had kept this under review and its decision not to use pre-proceedings was made without fault.
• Had prevented Mr X from returning to his business. It had given appropriate advice about the consequences of what would happen if he did not comply with the agreement. While the allegations were in place he could not have worked on his business.
• Supervising social worker had not attended certain meetings including not attending any Child in Need meetings. The supervisor had supported the social worker appropriately and the case was within the officer’s capacity to deal with.
• Had inappropriately told Mr X he was being charged with the offence before the police told him. It had to tell Mr and Mrs X about the initial child protection conference and why it was happening.
• Had told Mr X it would remove the children before later correcting this advice. This was not supported by the case notes.
• Had wrongly decided the case met the threshold for child protection. However, the investigating officer thought the case had been managed in an unduly restrictive way and the Council should have considered other options. They noted an officer subsequently involved said they felt the child protection plan had got ‘stuck’, given the protective factor of Mrs X and should have been reviewed.
• Had sent an officer to Mr and Mrs X who was confrontational and bullying. The records did not support this and the officer, at interview, said they were unaware of any problems.
• Had put pressure on Mr X to explain to the children what was going on. Mr and Mrs X and the Council had different opinions about what should be shared with the children. There was no evidence from case records of from interviews to substantiate the complaint.
• Had avoidably distressed the children because of how it dealt with the case. There was no evidence from the investigation of adverse impact on the children caused by the Council’s actions.
• Had caused Mr X to lose his job and income. It would not have been possible for Mr X to continue to run his business given the circumstances of the charges against him. He could not have had unsupervised contact with children. This was not because of fault by the Council.
23. It could not make a finding on the complaints that the Council:
• Had not given adequate financial advice about what Mr and Mrs X could do in their situation. There were no records about what advice the Council had given, apart from referring them to a foodbank.
• Officers had behaved in a passive aggressive way, threatening Mr and Mrs X with removing their children if they did not comply. Records and interviews indicated the officer concerned behaved appropriately. Mr and Mrs X had a strongly different recollection.
• Officers had patronised Mr X when he questioned their approach. There was no evidence from case notes and records and wide divergence of opinions of what happened.
24. The stage 2 investigation recommended the Council:
• Send Mr and Mrs X a letter of apology for the service failures identified.
• Ensure use of written agreements is understood by all staff, particularly how they are reviewed.
• Review how it closed cases following a criminal court case.
• Review how it assessed people (such as family members) who supervise contact with children.
• Ensure all meetings are formally recorded.
• Review how it receives and acts on correspondence, particularly complaints.
25. In March 2019 the Council sent Mr and Mrs X its adjudication letter, summarising the stage 2 findings. It agreed to carry out all the recommendations. It summarised what it had done to carry out each recommendation. It said Mr and Mrs X could request a further review or go direct to the Ombudsman.
26. The Council separately wrote to Mr and Mrs X to apologise for service failures. This apology letter also explained how the Council had improved its practice since their experience.
27. In April 2019 Mr X asked the Council to review its decision. He said the stage 2 investigation had been robust but that:
• It was not acceptable that the investigation had not interviewed former staff.
• The Council had failed to properly manage staff working with the family.
• Council staff had been prejudiced against Mr X, as shown in the investigation.
• The Council had not attended the court case, had not met its duty of care and had caused harm to the family.
28. Mr X said the investigation findings to uphold certain elements and not others were contradictory. It should have been possible to say what emotional abuse the family suffered because of the Council’s failures. It was entirely the Council’s fault his business had not restarted because of the contact restrictions it imposed on him. He asked the Council to:
• Carry out an independent investigation and review of evidence.
• Take disciplinary action against officers to prevent them causing harm to others.
• Accept its actions had damaged the health and wellbeing of the family.
• Financially compensate the family for what happened.
29. The Council replied, refusing to consider the complaint at stage 3. It said a further investigation would be unlikely to reach a different outcome. The complaints process could not recommend disciplinary action. The stage 2 investigation had considered whether the Council had damaged the family’s health and wellbeing. It said it could not provide compensation through the complaint process. It gave details about how to make an insurance claim against the Council. It gave Mr X contact details for the Ombudsman.
30. Mr X complained to the Ombudsman said the Council had caused significant financial loss to the family. He said the Council had told him it would take away his children if he broke the agreement. He said the Council’s actions had been extremely distressing for the family.

Council actions since the complaint.

31. The Council has published revised guidance for its use of written agreements. These say written agreements are voluntary and not legally binding. It has also reminded all staff about how to use written agreements and to make sure they are using the correct format.
32. It has also revised its procedure for closing cases which now require various management authorisations, including a safety assessment sent to the parent or carer.
33. The Council has recruited a new officer to promote appropriate support from family members where appropriate to help with supported contact arrangements.

My findings

The Statutory Children’s Complaint investigation

34. The stage 2 investigation was carried out in accordance with the statutory children’s complaint procedure. The investigating officer and independent person appropriately considered all parts of Mr X’s complaint and made findings and recommendations to the Council. The investigation took more than the 65 days normally expected but has explained why it took longer so was not fault.
35. The investigator appropriately interviewed relevant, available council staff and tried to contact those no longer working at the Council. They could not compel other individuals to take part in their investigation. The Council has provided me with records of the interviews and these show that the investigator discussed the complaint in detail and invited officers to reflect on their experience and that of others where appropriate.
36. Mr X is concerned that the investigating officer reached definitive conclusions in some aspects of the complaint, particularly about the circumstances surrounding the written agreement, despite being unable to interview the officers concerned. The investigating officer was entitled to reach conclusions on the balance of probabilities, based on their review of available evidence. That is to say that, having properly considered all the available evidence, they were entitled to decide what was the more likely outcome. There was no fault in how the stage 2 investigation was carried out and therefore I have not reinvestigated the matters complained about.
37. The Council’s adjudication letter considered each recommendation from the stage 2 investigation and responded to them all, agreeing to carry out the recommended actions. It has confirmed and provided me with evidence of how it has made service improvements to improve staff awareness of how to use written agreements, and to support families in circumstances where contact has been restricted.
38. The Council advised Mr X of his right to request a stage 3 review, also advising him of his right to complain to the Ombudsman. However, because the stage 2 report had not upheld all parts of the complaint it should have agreed to carry out a stage 3 review.
39. The Council should also not have said it could not award compensation through the complaint process. Councils can remedy any injustice arising from fault. Statutory guidance for children’s services complaints specifically refers to compensation as one reason for councils offering financial redress to complainants.
40. This was therefore fault, meaning Mr X was denied the option of a review panel that could have considered whether financial redress was appropriate as well as considering the adequacy of the stage 2 investigation. The stage 3 panel would probably not have reinvestigated the complaint as there was no fault in how the stage 2 investigation was carried out.
41. My investigation has enabled this review to take place and so Mr X has not suffered significant injustice because of this fault. The Council should review its procedures for children’s services complaints to ensure it carries out stage 3 panels unless the circumstances for an early referral to the Ombudsman are met.

Reviewing outstanding injustice to Mr X from upheld parts of his complaint

42. Mr X believes the Council should remedy financial loss that arose from its faults. There was some fault in the Council’s advice to Mr X regarding the written agreement, and for not reviewing whether it remained appropriate. This caused some avoidable distress. However, it does not follow that Mr X’s business failed as a direct and inescapable consequence of the Council’s faults.
43. Whatever the Council told Mr X about the agreement, or the consequences of him not signing it, it would have been reasonable and appropriate for him to have obtained independent legal advice and decided whether to act on it. The Council was also entitled to tell Mr X about the possible consequences of refusing to sign or comply with the written agreement.
44. Also, the Council’s involvement with Mr and Mrs X during this time would have inevitably and unavoidably been distressing to them because of the charges against Mr X. However, the Council’s faults did cause Mr and Mrs X avoidable distress and uncertainty. It poorly communicated at times with the family, gave them inadequate advice about support they could ask for and took too long to carry out its child protection investigations.
45. We therefore recommend the Council makes a token financial remedy for avoidable distress caused to Mr and Mrs X. This is at the higher level we normally recommend for remedies for distress. It also takes into account the unavoidably distressing context for the family through this time.

Agreed action

46. Within one month of our final decision the Council will pay Mr and Mrs X £500 as a remedy for avoidable distress caused by the faults identified.
47. Within three months of our final decision the Council will review its children’s complaint handling procedures to ensure it complies with statutory guidance regarding offering stage 3 panels where stage 2 investigations do not uphold all alleged faults.

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Final decision

48. I have completed my investigation, finding there was fault causing injustice. The Council has agreed a remedy and has already made appropriate service improvements.

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Investigator's decision on behalf of the Ombudsman