Decision : Upheld
Decision date : 25 Jun 2020
The Ombudsman's final decision:
Summary: Mr F complains the Council failed to safeguard his children. The Ombudsman has found fault. The Council has agreed to apologise and make payments to Mr F and his children to remedy the injustice caused.
- Mr F complains the Council failed to safeguard his children, X and Y, when it placed them with a Special Guardian from July 2014 to September 2016. In particular, he says the Council:
- Did not respond appropriately to concerns he raised in 2015 about the guardian
- Left his children with the guardian despite evidence they were at risk of, or had suffered, significant harm
- Delayed responding to his complaint about the matter in 2018
- Wrongly sent him unredacted case records in 2018
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 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 law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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 Mr F about his complaint and considered the Council’s response to my enquiries and:
- The Children Act 1989 ("the Act")
- Statutory Guidance Working Together to Safeguard Children
- Statutory Guidance Getting the best from complaints
- Derby and Derbyshire Safeguarding Children Partnership Procedures Manual
What I found
- The Children Act 1989 says councils have a duty to safeguard and promote the welfare of children within their area who are in need. 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)
- If a local authority receives a report of concern about a child (a “safeguarding referral”), the council must decide within one working day what response is required. This includes determining whether:
- the child requires immediate protection, or
- the child is in need and should be assessed under section 17 of the Act, or
- there is reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm.
- Where there is the possibility of serious immediate harm to the child, the council must act quickly to secure the immediate safety of the child. If it is necessary to remove a child from their home, a local authority must, wherever possible and unless a child’s safety is otherwise at immediate risk, apply to the court for an emergency protection order. Before it can make an emergency protection order, the court must be satisfied that the child is suffering, or is likely to suffer, significant harm unless they are taken away from where they are now.
- A child in need may be assessed under section 17 of the Act. This “Single Assessment” should be completed within 45 working days from the date of the referral. Following the assessment, if the council decides to provide services, a child in need plan should be developed.
Children’s statutory complaints procedure
- 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). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. The request must be made within 20 working days.
- Regulations set out the timescales for the process. The Council should provide a response at Stage 1 within 10 working days, at Stage 2 within 25 working days (or exceptionally within 65 working days) and convene a review panel at Stage 3 within 30 working days.
- 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.
- Mr F’s children, X and Y, were taken into care by the local authority in 2014. They went to live with Ms M who started to be assessed as a possible special guardian.
- In January 2015 a psychologist assessed X and Y. The psychologist’s report indicated X and Y were not securely attached to Ms M and that Ms M had hit X. Mr F raised concerns with the Council about this. A social worker visited Ms M and she denied having hit X.
- In February 2015 the special guardianship assessment of Ms M was positive and in March 2015 the Court granted a special guardianship order to Ms M and a 12-month supervision order to the Council. The Council carried out regular unannounced visits.
- In July 2015 a police check of Ms M’s partner, Mr N, showed he had previous convictions for violence. The social worker spoke to Ms M. It was accepted that Mr N stayed in Ms M’s home occasionally and did not have unsupervised contact with X and Y. No risk assessment of Mr N was therefore carried out and there is no reference to Mr N in the notes of the social worker’s visits.
- Concerns were raised about X having sexually inappropriate behaviour later in the year. Mr F was informed and support put in place for X. The March 2016 child in need review found Ms M managed X and Y’s day to day care well and they wished to stay with her. There was no reference to Mr N.
Safeguarding referral April 2016
- On 27 April 2016 the school told the Council that X had bruising. The Council held a strategy discussion which decided the bruising was non-accidental. There was a child protection medical assessment. X said the injury had been caused by another child, and medical staff could not rule out it may have been caused by an older child. The note of the strategy discussion says the police were to lead the section 47 enquiries but, other than photographing the injury, I have seen no evidence of a police investigation.
- The case records show the Council and police agreed that X and Y would return to Ms M’s care that day because X had not said an adult had caused her injury and there was concern about the emotional impact on X and Y of having to move. In addition, Ms M had not agreed to X and Y being removed from her care and the police said there was not enough evidence for them to immediately remove the children.
- The Council visited Ms M on 6 May 2016. She denied hitting X but it was noted Mr N had been at the house prior to the safeguarding referral being made. There is no evidence that an assessment was carried out as part of the section 47 investigation and I have seen no report of the outcome of the section 47 enquiries or consideration of whether an initial child protection conference was required.
Safeguarding referral May 2016
- The school raised further concerns about X’s welfare in May 2016. The social worker spoke to X and Y who said Mr N had been verbally abusive to them, they did not feel safe at home when Mr N was there, and that he was living at the family home. The Council visited Ms M, she denied Mr N had frequent contact with X and Y. I have seen no evidence a strategy discussion was held in response to these concerns.
- The Council asked Ms M to sign an agreement that Mr N would have no contact with X and Y. The social worker visited two days later and found the agreement had been breached. Ms M said she could no longer care for X and Y and the Council started to look for a foster carer.
Safeguarding referral June 2016
- The school again raised concerns about X and Y’s welfare. The Council said there was not enough evidence to enable legal action to remove the children from Ms M’s care unless she agreed to this. On 20 June 2016, Ms M told the Council she wanted to carry on caring for X and Y and was no longer volunteering them into local authority care.
- A strategy discussion was held on 22 June 2016 due to concerns about emotional abuse of X and Y. The outcome of the section 47 enquiries was recorded on 23 June 2016. This found the safeguarding concerns were substantiated and that X and Y were at continuing risk of significant harm.
- An initial child protection conference was convened on 13 July 2016, which Mr F attended. Mr F raised concerns with the Council about possible physical abuse of X and Y by Mr N. The conference decided to make X and Y subjects of child protection plans. The plan’s actions included Mr N being unable to stay at Ms M’s house or have contact with X and Y, until he had been assessed. There is no evidence the conference considered the psychologist’s assessment of X and Y or whether to take legal action to remove X and Y. The Council started to assess Mr N.
July 2016 to September 2016
- The Council received reports that Mr N was having contact with X and Y and that he was living at the property. There is no evidence a further strategy meeting was held.
- The police and social worker visited Ms M’s property in September 2016 following reports of possible physical abuse of X and Y by Mr N. Ms M agreed for the children to be taken into the care of the police and local authority. X and Y moved into foster care and the Council applied for a care order.
Mr F’s complaint
- In 2018 Mr F made a subject access request and was sent confidential case records in error. As a result of seeing the information, Mr F made a formal complaint on 2 April 2018 that the Council had not safeguarded X and Y in 2016.
- The Council reported the data breach to the Information Commissioner and asked Mr F to return the documents, but he declined. The Council decided to deal with the data breach before replying to Mr F’s complaint. It therefore did not reply until 3 October 2018. The Council did not uphold Mr F’s complaint. It said it had responded appropriately to concerns raised about the care of X and Y whilst they lived with Ms M.
- Mr F was dissatisfied and approached the Ombudsman. It was too soon for us to consider the matter and the Council agreed to escalate Mr F’s complaint to stage 2. The independent investigating officer’s report was completed in February 2019. The officer upheld Mr F’s complaint. The investigation found:
- The Council should have assessed Mr N sooner.
- A single assessment should have been undertaken in April 2016.
- Insufficient consideration had been given to the psychologist’s assessment when deciding whether X and Y should stay with Ms M.
- The Council should have been more robust and proactive in its response to the concerns raised in 2016.
- If a council has investigated something under the children's social care statutory complaints procedure, the Ombudsman would not re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the stage 2 investigation.
- The Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Mr F. The investigation took account of evidence from a range of sources and addressed each of the complaints in detail. The report shows the investigator weighed the evidence and drew objective conclusions from it. The report is comprehensive and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions. Having considered all the information available to me, I find the investigation was carried out in line with the guidance.
- My role therefore is not to re-investigate the whole matter, but to look at whether the Council properly considered the findings and recommendations of the independent investigation. I have also considered whether there was any fault or injustice that was not identified by the independent investigator.
Did not respond appropriately to concerns he raised in 2015 about the guardian
- The stage 2 investigation found Mr F’s concerns had not been ignored. I have seen that he raised concerns with the Council in January 2015 after he saw the psychologist’s assessment that indicated Ms M had hit X. In response, the Council visited Ms M who denied this. I do not consider the Council could have done more at this stage, and Mr F had an opportunity to raise any concerns about Ms M in court when the special guardianship order was being determined. I therefore agree with the independent investigator’s finding that Mr F’s concerns were dealt with appropriately.
Left his children with the guardian despite evidence they were at risk of, or had suffered, significant harm
- The stage 2 investigation upheld this complaint.
- In July 2015 the Council had an opportunity to assess Mr N as the police check showed he had convictions for violence. It did not do so as it was assured by Ms M he had minimal contact with X and Y. This was a professional judgment made by officers, and I cannot say there was fault as I have seen no evidence to suggest Mr N was living at the property at this stage.
- However, there was fault in the Councils’ response to the April 2016 safeguarding referral. Whilst there is evidence the police were to lead the enquiries, there was no single assessment, which is not in line with the Procedures Manual. Nor was there a report of the outcome of the section 47 enquiries to determine if X had suffered significant harm and whether an initial child protection conference should be held. Given medical staff had found the bruising was caused by a non-accidental injury, I consider it likely the outcome would have been that X had suffered significant harm. An initial child protection conference should therefore have been held within 15 working days of the strategy meeting (i.e. by mid May). There was none.
- There was also a missed opportunity to start an assessment of Mr N as there was evidence in the referral he had been living at the property. This was supported by further evidence from X and Y in May 2016, who told the social worker Mr N was living there and he had verbally abused them. Further concerns were also raised by the school in May 2016 and I find it was fault not to hold a second strategy meeting at this point, as there was evidence X and Y may have been suffering significant harm.
- After the breach of the agreement for Mr N to have no contact with X and Y, the school again raised concerns in early June 2016. The Council said there was not enough evidence to remove X and Y without Ms M’s agreement, but it was seeking a new foster carer. However I have seen no records of any legal advice, which I consider to be fault. In addition, I agree with the investigating officer’s finding that a decision about whether the threshold for legal action had been met could not have been properly taken until a single assessment had been completed. I therefore find the assumption that X and Y could not be removed was flawed and not properly considered.
- Ms M then withdrew her agreement for X and Y to leave her care, but during July 2016 the Council continued to receive reports Mr N was living at the property. I find it was fault not to hold a strategy discussion, seek legal advice, or consider what legal action may have been possible at this point. This action was not taken until September 2016, when the police removed the children and Ms M agreed for them to be taken into care.
- I find the Council failed to safeguard X and Y from the risk of significant harm from May 2016 to September 2016.
- The Council failed to assess any risk posed by Mr N despite the April 2016 strategy discussion finding the children to be at risk of significant harm, reports that he was living at the property, and its concerns during the summer of 2016 that Ms M was prioritising her relationship with Mr N.
- The Council considered X and Y were significantly attached to Ms M and would be disrupted by a move, but this was not the finding of the psychologist’s assessment. It failed to hold strategy discussions or complete an assessment, which meant it could not seek proper legal advice on the action it could take.
- The Council did not cause harm to X and Y, but it missed opportunities to take action. This meant X and Y were left at risk of harm. However, I cannot say whether X and Y would have been removed from Ms M’s care if the Council had acted differently.
- Mr F is left with the uncertainty of wondering whether, if the Council had taken those actions, X and Y could have been spared the risk of harm. This uncertainty, and the distress this causes him, is his injustice.
Delayed responding to his complaint about the matter in 2018
- The stage 2 investigation found the Council should have advised Mr F its reply to his stage 1 complaint would be delayed.
- However, there was fault by the Council not replying to Mr F’s stage 1 complaint until October 2018. The guidance is clear that the maximum amount of time that stage 1 should take is 20 working days. After this deadline the complainant can request consideration at stage 2 if he so wishes. This caused time and trouble to Mr F as he had to come to the Ombudsman to progress the complaint to stage 2.
Wrongly sent him unredacted case records in 2018
- There was fault when the Council sent Mr F confidential records. It reported the breach to the Information Commissioner and in response to my enquiries said it had implemented the Commissioner's recommendations.
- Mr F told me that seeing this information made him feel disgusted, anxious and let down. That avoidable distress is his injustice.
- The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in this case, we may recommend the Council makes a symbolic payment to acknowledge what could have been avoidable distress, harm or risk.
- When we recommend a payment for distress, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a moderate sum of between £100 and £300.
- Claims of injury or harm to health are usually a matter for the Courts, but we may recommend a small payment to acknowledge the risk of harm somebody faced where there are faults in the Council services intended to provide protection. We will take account of:
- the severity of the harm or risk of harm;
- the length of time involved;
- whether the person affected is vulnerable; and
- any professional opinion about the effects on the individual.
- apologise to Mr F for the faults identified
- pay Mr F £200 to acknowledge his distress caused by the Council’s faults and £100 to acknowledge the time and trouble he was put to by delay in the complaints process
- pay X and Y £250 each – to be used for their benefit - to acknowledge the Council’s failure to protect them from risk of harm from May to September 2016
- There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman