Summary: Mr X complains about the way the Council handled an urgent child protection matter and his subsequent complaint about it. He says this has caused his family considerable distress. While the Ombudsman is satisfied with Council’s previous investigation, he has found the personal remedy to be inadequate because it failed to recognise the injustice that happened in this case. The Council has agreed to address this.

The complaint

1. The complainant, whom I shall call Mr X, complains about significant failures during a child protection investigation involving his two children. He says the Council’s response to his complaint about this matter was also inadequate.
2. He says this has caused him and his wife considerable additional distress at an already difficult time. He is also concerned about the longer term effect on his children.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

5. I discussed the complaint with Mr X and considered the written information he provided. I considered the Council’s responses to his complaint. I took account of all the information before reaching a draft decision on the complaint. This was sent to both parties to comment upon.

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What I found

Councils’ duties towards children

6. Local authorities have a duty to safeguard and promote the welfare of children within their area who are in need by providing services appropriate to the child’s needs. (Children Act 1989, section 17)
7. Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)

The statutory complaints process

8. The law sets out a three-stage procedure for councils to follow when looking at complaints about Children’s Services. At stage 2 of this procedure, the Council appoints an Independent Investigator (“the Investigator”) and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation
9. The timescales in working days for the procedure are:

• 10 days at stage one (with a further 10 days for more complex complaints or additional time if an advocate is required);
• 25 days at stage two (with maximum extension to 65 days);
• 20 days for the complainant to request a Review Panel;
• 30 days to meet and hold the Review Panel at stage three;
• 5 days for the Panel to issue its findings; and
• 15 days for the council to respond to the findings.

(Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).

What happened

10. In January 2017, Mr X and his wife, Mrs X, discovered some unusual bruising on their two year old daughter (Child B). The next day, Mrs X took Child B first to the GP and then to hospital where tests were carried out. This led to involvement by the Council’s social services department. The Council applied for a Care Order which was granted by the court. Child B was placed by the Council with family friends of Mr and Mrs X.
11. At this time, Mrs X was pregnant with her second child (Child C). She was born in June 2017.
12. Under the umbrella of the ongoing care proceedings, the Council conducted a number of assessments and commissioned expert reports to establish what had happened to Child B.
13. The final court hearing took place in July 2017. Mr and Mrs X were exonerated, and she was returned to their care. A third party was found to be responsible for Child B’s injuries.
14. Mr X complained about the Council’s actions during this difficult time. This was investigated under all three stages of the statutory children’s complaints procedure.
15. The majority of his complaint was upheld at stages 2 and 3. The complaint investigation identified a number of areas of fault that included:

• Poor communication.
• Poor record keeping.
• Failure to properly prepare for Child B’s move to alternative carers.
• Delays during court proceedings.
• Delay in arranging an interpreter.
• Errors in documents prepared for court.
• Delay in completing a pre-birth assessment for Child C.
• Confusion when arranging a parenting course.
• Poor stage 1 response.

16. Both the stage 2 investigation and stage 3 review put forward a number of recommendations, including an apology and several service improvements to both social work practices and complaint handling.
17. Mr X was initially offered £300 to acknowledge the time and trouble and distress pursuing the complaint. This was increased to £500 at stage 3.

Mr X’s complaint to the Ombudsman

18. Mr X remained aggrieved by the outcome of the Council’s investigation particularly about the following aspects of it:
1. The length of time it took to complete the statutory complaints procedure.
2. The inadequacy of the recommendations.
3. The inadequacy of personal remedy. Mr X has refused to accept the Council’s offer of £500.
4. The Council’s failure to properly explore connected persons rather than foster care.
5. The Council’s decision making regarding there being no further involvement from social services after Mr X and his wife were exonerated.
19. Mr X says the Council’s financial remedy fails to address the level of injustice suffered by him and his family. He says the Council has offered to discuss counselling for Child B if this is required in the future. And while there appears to be no effects on Child C, he has concerns about what may happen in the future due to the stress experienced by Mrs X during her pregnancy. He would like Child C to be offered the same support as her sister if required in the future.
20. Mr X acknowledges that it was a difficult time for the family, but it was made much harder by the Council’s poor performance, which was avoidable. He describes this as having, “ramped up the pressure, most worryingly around the birth of Child C without a clear pre-birth plan, leading to a birth with the threat of removal and constant surveillance. It was an exceptionally difficult time for Mrs X, leading to chronic stress and anxiety, and remains a painful memory”. Mrs X has spent a significant sum of money on therapy over what happened.

Analysis

21. My role is to consider whether there was fault in the Council’s consideration of Mr X’s complaint. I am aware that Mr X is unhappy with the outcome as it did not uphold every part of his complaint. It is not my role to consider whether its decision was right or wrong but to focus on whether it was reached properly and thoroughly. Mr X is particularly unhappy about the decision to not uphold two heads of complaint. Mr X provided the Ombudsman with detailed submissions in support of his argument that the decisions of the Investigator and the review panel were wrong.
22. In relation to his five specific complaints my findings are set out below.

Length of time it took to complete the statutory complaints procedure

23. Paragraph 9 above sets out the relevant timescales. Mr X made his original complaint on 18 January 2018 and the response provided on 18 February 2018.
24. I found this initial response to be inadequate and failed to even acknowledge many of the issues and concerns raised by Mr X. This was acknowledged at stage 3 and it was described as “poor”.
25. Mr X made his request for his complaint to be considered at stage 2 on 28 February 2018. The response was sent out on 4 January 2019. This is well beyond the extended timescale that had been agreed at the outset. This is fault. The Council has acknowledged this delay was too long but said Mr X was kept informed about this. While this may be the case, it does not excuse the excessive delay.
26. The complaint was complex and detailed. But much of the delay was caused by staff being unavailable and seemingly uncooperative. The Investigator was highly critical of the lack of staff engagement within the complaints process and said this should be addressed by senior management.
27. Mr X requested a stage 3 review on 31 January 2019, but the review panel did not consider the complaint until 20 May 2019, and its findings completed on 22 May 2019. This was outside the 30 day timeline The response was sent on 17 June 2019, slightly outside the 15 day timeframe.
28. The Council has carried out a review of the reasons for the delays and failure of staff to engage with the process and apologised for the delay. The Council set out several service improvements covering a number of areas. The Ombudsman can add nothing further to what the Council has already done.
29. Where there has been significant fault during the complaint process, as was the case here, the Ombudsman’s guidance on remedies suggests making a payment of between £100 and £300 to the complainant.
30. The Council has already offered £500, “to acknowledge the time, trouble and distress in pursuing the complaint”. While over the upper guideline figure, taking into consideration the particularly poor initial response and reasons for the later delay, I consider this to be an appropriate amount to remedy the injustice caused by the poor complaint handling.

Inadequacy of certain recommendations

31. In part, Mr X felt it necessary to bring his complaint to the attention of the Ombudsman, because he thought the service improvements that arose from the complaints process were inadequate. Because of his experience he was not confident that the proposed measures would prevent someone else being treated the same way in future.
32. I disagree. The Service Director personally reviewed the findings and recommendations from the complaints procedure. She gave a detailed explanation about what was going to happen to improve practices going forwards. It is not the role of the Ombudsman to “police” the implementation of such practices unless there is evidence of further fault. In the absence of this, there is no role for the Ombudsman here.

Inadequacy of personal remedy

33. The offer of £500 to was made to acknowledge “the time, trouble and distress in pursuing the complaint”.
34. While I welcome this, the Council has failed to consider the injustice caused as a result of the significant number of service failures that were made during the child protection investigation. It should have done so. While it was not necessary to set out the detail within this decision statement, the stage 2 investigation report set out a catalogue of poor social work practice that I am satisfied will have made an already difficult situation, much worse. To the Council’s credit it has already acknowledged these failings and put in place several service improvements. But it should have properly acknowledged the distress this poor practice caused to Mr and Mrs X.
35. The Ombudsman’s guidance on remedies says that councils are expected to treat people fairly and with respect and not expose the public to unnecessary distress, harm or risk as a result of their actions. Such injustice cannot generally be remedied by a payment so we usually seek a symbolic amount to acknowledge the fault on the complainant. A remedy payment for distress (which covers undue significant stress, inconvenience and frustration) is often a modest sum between £100 and £300. In cases where the distress is severe or prolonged, up to £1000 may be justified. Occasionally we may recommend more than this.
36. In reaching my decision about this I have considered what injustice arises from the numerous faults identified during the complaints process, rather than the inevitable distress at removal of a child, especially whilst pregnant.
37. I am satisfied that these numerous and significant faults (set out briefly at paragraph 15 above) caused additional frustration and distress, over and above, what Mr and Mrs X would have experienced through the sudden removal of Child B from their care for 99 days. The most significant injustice was the duress identified by the Investigator caused by the delay in completing the pre-birth assessment. Mr X set out the effect this has had on Mrs X and the unknown impact this may have had on the unborn Child C (paragraph 20 above).
38. I cannot say the faults by the Council are solely responsible for the all of the distress suffered, but I consider it entirely appropriate and proportionate for both Mr and Mrs X to receive a payment that recognises the additional injustice caused by the Council’s fault. And for there to be a more certain commitment to offering support to both children should they need it in future.
39. What was already a terrible experience was made much worse by the actions of the Council.
40. My recommendations are set out at paragraph 49 below.

Failure to properly explore connected persons rather than foster care

41. Mr X remains dissatisfied with the stage 2 decision not to uphold this aspect of his complaint that was later endorsed by the stage 3 panel.
42. Mr X says the Council did not “fully explore” alternative carers. Nor did the Council use “vigorous attempts” to identify possible carers. The latter was a requirement of the Council’s relevant policy.
43. The stage 2 investigation was both thorough, well-reasoned and supported by evidence. The Investigator was clear “there is no evidence that the Local Authority attempted to place Child B in foster care without exploring the possibility of finding such care with a connected person. It was not a situation of not exploring or a lack of willingness ..rather it was a reality of the harsh circumstances of the case and a very tight timescale faced”.
44. This conclusion is endorsed by the timeline set out by the Investigator.
45. I have carefully considered the detailed representations made by Mr X. As the decision by the Investigator was evidence based and she made her decision based on the relevant law and policy guidance, the Ombudsman will not interfere with the decision she reached.

The Council’s decision making regarding the court instruction about no further involvement from social services

46. Mr X remains unhappy about the decision of the investigator that the Council was not a fault when it continued its involvement with the family after they had been exonerated by the Court. The Council refused to deviate with its standard, post court procedures.
47. The part of the court order relevant to this part of the complaint stated, “Upon the court indicating, that on basis of findings, the court can see no reason for the Local Authority to have any further involvement with the family”.
48. While Mr X may strongly disagree with the Council’s actions after the court case had ended, it was a decision it was entitled to make, regardless of what the judge had indicated. I am satisfied Mr X’s position was properly considered by the Investigator and Stage three Panel. As before, there is no role for the Ombudsman to interfere with this decision.

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Agreed action

49. Within one month from the date of my final decision, the Council has agreed to take the following action:
1. Pay Mr X and Mrs X £750 each to acknowledge the distress caused by the significant number of faults identified in the stage 2 investigation report and stage 3 review panel.
2. Pay Mr X £500 to acknowledge the significant fault in the complaint handling and the resulting time and trouble he spent dealing with it.
3. Confirm its commitment in writing to Mr X to fund a course of counselling for Child B and Child C if requested by him, and there is support for this by the child’s GP.

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Final decision

50. I have found that the Council did not properly remedy the faults identified during the Council’s own investigation into the complaint. The Council to increase its financial remedy.
51. 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.

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Investigator's decision on behalf of the Ombudsman