London Borough of Hackney (19 017 937)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 30 Apr 2021

The Ombudsman's final decision:

Summary: Mr W complains the Council failed to treat him appropriately when it assessed him and his family’s needs after receiving a referral raising concerns. He says its actions caused him distress and time and trouble. The Council has been asked to apologise, make payments and change procedures going forward.

The complaint

  1. The complainant, whom I shall call Mr W complains that the Council failed:
      1. to ensure its written information, complaints procedure and reports were accessible to him as a Lao speaker
      2. to communicate effectively or share information with him in advance of meetings about his son;
      3. to accept that although he was accused of domestic abuse towards his ex-partner, and referred to as a perpetrator, she had been violent towards him;
      4. to provide him with an adequate service;
      5. to listen to or support him. He wanted the Council to intervene to ensure his son was comfortable living with his mother;
      6. to keep him updated on the complaints it upheld at stage 2 of the statutory complaints procedure;
      7. to accept that he need not attend anger management classes;
      8. to accept that a disputed telephone call did not happen even though it was a trigger for the Council’s later actions;
      9. to conduct a child and family assessment properly or to reach a reasonable conclusion;
      10. to conduct work under a Child in Need plan properly; and,
      11. to appropriately compensate him for the impact this has had on him. He did not feel an apology was enough. He said nothing had been done to reverse or amend mistakes even though the Council’s actions affected his finances and his physical and mental health.
  2. I am also considering the Council’s complaints process.
  3. Mr W said the Council’s fault had caused him significant distress – because of the harm he had suffered - and time and trouble trying to get it to take action.

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The Ombudsman’s role and powers

  1. 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)
  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. 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)
  4. 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. (Local Government Act 1974, section 24A(6), as amended)
  5. We cannot investigate a complaint where the Council is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
  6. 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.
  7. 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

  1. I considered the information submitted by Mr W with his complaint and information gathered from previous correspondence between Mr W’s representatives and the investigator. I assessed the Council’s response to enquiries. I sent Mr W’s representative and the Council a copy of my draft decision and took the comments they made into account before issuing a decision.

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What I found

Law and guidance

Child protection and child in need

  1. The statutory guidance relating to child protection is ‘Working Together to Safeguard Children’ and the latest version was published in 2019. This supports the Children Act 1989 and subsequent Children Acts. Working Together makes it clear that anyone who has any concerns about a child’s welfare should make a referral to the Council, which then decides what action it needs to take to keep children safe from any harm.
  2. After a referral, the Council can decide to carry out an assessment, the purposes of which is:
      1. to gather important information about a child and family
      2. to analyse their needs and/or the nature and level of any risk and harm being suffered by the child
      3. to decide whether the child is a child in need (section 17 of the Children Act 1989) or is suffering or likely to suffer significant harm (section 47 of the Children Act 1989)
      4. to provide support to address those needs to improve the child’s outcomes and welfare and where necessary to make them safe.
  3. Children are considered ‘in need’ if they are “unlikely to achieve or maintain or to have the opportunity to achieve or maintain a reasonable standard of health or development without provision of services from the Local Authority” or “their health or development is likely to be significantly impaired, or further impaired, without the provision of services from the Local Authority” or “they have a disability”.
  4. The child and family must be told what action will be taken after a referral unless this might affect a police investigation or place the child at additional risk.
  5. The maximum time for the assessment is 45 working days from the point of referral. If the assessment is longer, the reasons for this should be recorded.
  6. The child, and family, need to be spoken to as part of the process and their views recorded.
  7. Where the Council decides to provide services, these are normally written into a child in need plan.
  8. The plan sets out which organisations and agencies will provide which services to the child and family. The plan should set clear measurable outcomes for the child and expectations for the parents. The first review should be held within 3 months of the start of the child in need plan and further reviews should take place at least every 6 months thereafter.
  9. Councils need to be aware of people’s needs through this process although the child’s needs will always come first.
  10. Where a child in need moves to another Council’s area, the new Council should consider whether support services are still required and discuss with the child and family what might be needed.

The statutory complaints process

  1. The statutory complaints process (also known as the children’s complaints process) is set out in statutory guidance called ‘Getting the best from complaints’ (2006).
  2. The statutory complaints process does not generally cover child protection although Councils have flexibility to decide whether they should consider complaints in this way.
  3. Stage Two involves an independent investigator and an independent person being appointed by the Council and (normally) each writing a report. Following their reports, the Council issues an ‘adjudication letter’. The purpose of an adjudication is for the Council to consider the reports and identify:
      1. its response;
      2. its decision on each point of complaint; and
      3. any action to be taken (with timescales for implementation).
  4. After a Stage Two investigation, the complainant can request a Stage Three Panel before coming to us. The panel should not reinvestigate the complaints, nor should it be able to consider any new complaints that were not considered earler. The Council must send its response to the Panel’s recommendations to the complainant (and other participants as necessary) afterwards.
  5. The document also sets timescales, which should be adhered to including a maximum of 65 days for a Stage Two investigation.

Mr W’s complaints

  1. From the information I have, the Council became aware of concerns with the family following a referral. It accepts it told Mr W about the referral later than it should have done. At the time, Mr W was the main carer for his son, Y, who was a disabled child on the autistic spectrum. He says his partner, Ms X, Y’s mother, was a perpetrator of domestic violence.
  2. Mr W says that because of the Council’s involvement, Ms X left the family home with Y.
  3. Mr W made a number of complaints about the actions of the Council over the time it was involved with him and his family and he did not feel the Council had treated him or his family properly. The Council considered these complaints under the statutory complaints procedure but Mr W remained unhappy. Mr W did not think the Council had remedied his complaints appropriately and did not look at the harm it had caused him.
  4. I will consider each of Mr W’s complaints in turn.

The Council failed to ensure its written information, complaints procedure and reports were accessible to him as a Lao speaker

  1. An internet search suggested there were 3.2 million people worldwide who spoke Lao compared to 1.5 billion people who speak English. The Council has acknowledged it had problems finding suitable, formally trained, Lao speakers who could provide translation services to Mr W. Although the family said they had sourced someone who could have been used for the Stage Three Panel meeting, the Council says they were not trained or vetted so could not be engaged by the company they used. This is not evidence of fault.
  2. Although I understand that Mr W felt this was unfair, and the lack of translation meant he found it difficult to follow or participate in meetings, I am aware his family provided translation for him, even if not formally. This meant Mr W was able to understand what was happening even if it was challenging for him to contribute.
  3. I am, however, finding the Council at fault for failing to consider whether it could communicate with Mr W in a simpler way; using an easy-read format, for example. This may have helped Mr W understand the complaints process, and the child protection process, from the outset. The Council should apologise for this and consider how it might provide easy-reading summaries, or at least simpler summaries, for non-English and/or non-community language speakers going forward.

The Council failed to communicate effectively or share information with him in advance of meetings about his son

  1. The Stage Two investigation accepted the Council had promised to provide him with agendas in advance of meetings but had not always done so. The Council has accepted fault and apologised for this, which is appropriate. It said, and I agree, that it would not always be necessary or appropriate to produce agendas for meetings.
  2. When asked about making sure agendas were sent when requested, the Council referred me to the Director’s Newsletter of October 2019 but this does not mention the need to send agendas in advance. The Council should tell me how it will ensure that agreements, such as these, will be noted and kept to, as far as possible, going forward. Even where it does not share agendas in advance, the Council should ensure that attendees (particularly where they do not speak English) understand the aims and purpose of each meeting held.

The Council failed to accept that although Mr W was accused of domestic abuse towards his ex-partner, and referred to as a perpetrator, Ms X had been violent towards him.

  1. The Council spoke with Ms X before it spoke with Mr W. Ms X appears to have said she was scared of Mr W and to have claimed there was domestic abuse in their relationship. The Council has said it has no record of Mr W being called ‘a perpetrator’ but, on the balance of probabilities, as Ms X had said she was scared of him, this may have been mentioned even if not recorded. The Stage Three panel highlighted that it is better to refer to people as ‘alleged perpetrators’ if the facts are not clear and I agree. This is fault and the Council should apologise to Mr W and tell me how it will remind staff of this going forward.
  2. The Council’s closure note identifies that Mr W was not physically violent. As the case is closed, I cannot achieve anything more for Mr W by investigating this further.

The Council failed to provide him with an adequate service

  1. I can see that the Council failed to provide Mr W with the service that he wanted. However, I have no evidence to suggest this was not ‘adequate’. The focus in child protection matters is on the child and not on the parents. I can see no evidence to suggest that the Council could have done anything more to either prevent the breakdown of his relationship with Ms X or to address the caring relationship he had for Y.
  2. If Mr W is unhappy with contact arrangements, he needs to go to court. If Mr W believes that social workers did not act appropriately, he needs to refer them to Social Work England.

The Council failed to listen to or support him. He wanted the Council to intervene to ensure his son was comfortable living with his mother.

  1. The Council accepted it did not take his views into account in the Child and Family Assessment until it was completed. The Council accepted fault and apologised for this. I consider this would have caused Mr W significant distress and the Council should acknowledge this by making a payment in line with our guidance. I cannot consider personnel complaints about named individuals.
  2. The Council needed to assure itself that Y was safe; this was its responsibility through the statutory process. Although it needs to work with families and deliver services to them it does this to fulfil its duty to the child.
  3. The Council clearly thought there were concerns about the family, which is why it produced a Child in Need Plan. As part of this, the Council would also satisfy itself a child was ‘comfortable’ with their living arrangements. I note the Council has no concerns and the case is closed. This is not evidence of fault.

The Council failed to keep Mr W updated on the complaints it upheld at Stage Two of the statutory complaints procedure.

  1. Adjudication letters, following Stage Two investigations and also Stage Three panels show what outcomes have been agreed and give timescales for their implementation. This did not happen here. However, upheld complaints do not necessarily demand timescales or updates. The outcomes section following Stage Two investigations gives desired outcomes. It also shows what complainants might expect and tells the Council what updates are appropriate. Mr W had the following desired outcomes from Stage Two and I explain whether any update would be necessary or appropriate in each case:
      1. Families should receive a fair and transparent service when being assessed by Children and Families Service. This was agreed. The Stage Three panel asked that the Council ‘reaffirm this position’ to Mr W. I consider this finding is sufficient and that no update would be necessary.
      2. Training for staff to deal with issues sensitively. The Stage Two investigation considered there was enough training available to emphasize this. The Stage Three panel suggested the complaints department be involved to help practitioners in this area. This is a matter for the Council and I do not consider an update would be necessary.
      3. For Mr W to be compensated for all the stress that he has been through. This was not agreed and no update would be necessary.
      4. Accountability and actions to be taken e.g. disciplinary action or dismissal for any failures identified. This is outside the scope of a complaints procedure. If Mr W felt social work practice was particularly poor, he could refer to Social Work England as the regulator. No update would be necessary.
      5. For Mr W to have a written and verbal apology. I understand Mr W was given a verbal apology by the Stage Three panel and a written apology for the parts of the complaint that were upheld in the adjudication letter. No update would be necessary.
      6. Mr W’s name to be cleared. This is outside the scope of the complaints procedure and no update would be necessary.
      7. For Ms X’s statement to be retracted. The Council could not retract a statement from someone else; it was up to Ms X to retract it or not. No update would be necessary.
  2. The Council has also said Y’s file has been brought up to date since the Stage Three panel met with the results of the complaint investigations.

The Council failed to accept that he need not attend anger management classes.

  1. The Council says it has no record of Mr W being asked to attend anger management classes. It says it was suggested he attend a domestic abuse intervention course but it was not held against him when he did not attend.
  2. The Council also accepts there is no evidence to show that Mr W was violent. As the case is closed, I cannot achieve any more for Mr W by investigating this point further.

The Council failed to accept that a disputed telephone call did not happen even though it was a trigger for the Council’s later actions.

  1. The Council accepts the ‘disputed telephone call’ did not happen.
  2. There was some discussion at Stage Three who the ‘disputed telephone call’ involved.
  3. Ms X seems to have said a telephone call had taken place, which prompted her to leave the family home. I understand she later admitted she had not been truthful. But the Council could not have stopped her leaving with Y; this was a choice Ms X made. Further investigation is unlikely to achieve a different outcome for Mr W.

The Council failed to conduct a child and family assessment properly or to reach a reasonable conclusion

  1. I have already found the Council at fault for not taking Mr W’s views into account in the Child and Family Assessment until it was completed.
  2. The Council also took longer to inform Mr W of the referral and then longer to complete the assessment than it should have done.
  3. This added to Mr W’s distress and I have reflected that in my proposed remedy.
  4. Mr W wanted the child and family assessment to be redone. I agree with the Stage Three panel that this is unnecessary. The case is closed. The file has already been updated with Mr W’s comments and the outcomes of the investigations into his complaints. Anyone reading it would understand the disagreements Mr W has with what was done and would be clear about the fault. I cannot achieve more for Mr W by investigating this further.

The Council failed to conduct work under a Child in Need plan properly

  1. The Child in Need plan was completed in July 2018. It was reviewed that month and again in December before being transferred to another council. There is no evidence of Council fault.
  2. By that time, Ms X had left the family home with Y and does not seem to have been prepared to reconcile with Mr W.
  3. The Council acknowledges it was difficult to set up a Contact Commissioning meeting for the family but Mr W could have chosen to seek independent legal advice. He may have decided to go to court to arrange contact independently of the Council’s actions. As there was another way for him to arrange contact, and it is reasonable to think he would have used the court to do that, I am not finding the Council at fault.
  4. I also see the Council accepted the minutes from Child in Need reviews were not always accurate as they had been cut and pasted each time. This is fault. The Council should apologise to Mr W as it would have been difficult for him to see what was expected of him and actions still needed to be taken. It will be asked to tell me how it will inform staff of the importance of updated minutes and to check this is done.

The Council failed to appropriately compensate him for the impact this has had on him. He did not feel an apology was enough. He said nothing had been done to reverse or amend mistakes even though the Council’s actions affected his finances and his physical and mental health.

  1. The point of the complaints process is not to offer compensation; it is to remedy injustice caused by Council fault. It is also for the Council to learn from the complaint and to see what practice changes might prevent the same problems from recurring. I can see the Council considered both of these issues. Compensation is for the court to decide on.
  2. It is not clear that the Council’s actions are what led to Mr W’s finances and health being affected. It was Ms X who decided to leave the home with Y. Ms X seems to have suggested she was concerned Mr W would find out she had been speaking to the Council, which is why she left. This was her choice and was not due to Council fault.

Complaints process

  1. I consider there were delays in the Council’s complaints process, which has caused time and trouble to Mr W.
  2. The Stage Two was allocated in December 2018 but was not completed until July 2019. The Stage Three Panel took place in October 2019 but the adjudication letter after that was issued in December 2019.
  3. This caused Mr W time and trouble in understanding the Council’s actions.

Agreed action

  1. For the Council to apologise to Mr W for the fault identified here where it has not yet done so within a month of the date of my decision.
  2. For its failures with the Child and Family Assessment, the Council should make a payment of £300 for Mr W’s distress within three months of the date of my decision.
  3. The Council is at fault for its delay in completing the complaints process and it should make a payment of £200 for Mr W’s time and trouble within three months of the date of my decision.
  4. The Council should apologise for failing to consider other ways of communicating with Mr W (if not in Lao) and look at how it might provide easy-reading, or simpler, summaries about child protection and complaints processes for non-English and non-community language speakers going forward. The Council has explained to me that it will seek to ensure people understand the information it has by using interpreters where necessary but it should consider whether that is sufficient. Young people might also benefit from the use of easier to understand documentation too. It should tell me what action it will carry out within six months of the date of my decision.
  5. The Council should tell me how it will ensure that agreements to provide agendas in advance will be noted and kept to, as far as possible, going forward. It should also tell me how it will ensure that meeting attendees (particularly where they do not speak English or a language common in the community) understand the aims and purpose of each meeting held. The Council has provided evidence to show it has taken steps to do this. I consider no further action is necessary.
  6. The Council should tell me how it will remind staff to use ‘alleged perpetrator’ rather than ‘perpetrator’ within six months of the date of my decision.
  7. The Council should tell me how it will inform staff of the importance of updating minutes through the Child in Need process and how it will check this is done within six months of my decision.

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Final decision

  1. Evidence of fault leading to injustice and a remedy has been agreed.

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Investigator's decision on behalf of the Ombudsman

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