Summary: Mr X complains about the lack of support he and his wife have received from the Council since adopting their three children and when they started having difficulties with their eldest child. Mr X also complains about the Council’s decision to place his children on child protection plans. There was no fault in the Council’s decision-making in this case. While there was fault in the Council’s complaint handling, this has not caused sufficient injustice to warrant a remedy.

The complaint

1. The complainant, who I have called Mr X, complains about:

• the lack of support he and his wife have received from the Council since they adopted their three children and started to have difficulties with their eldest child in February 2019; and,
• the Council’s decision to place all three children on child protection plans when it failed to provide appropriate support and respite care before the difficulties escalated.

2. This led to the eldest child being placed in foster care from February to July 2019. Mr X says the Council has still not provided the support required to meet his children’s needs, which has meant he has had to source this himself.
3. Mr X says he and his family have suffered significant distress and trauma because of the lack of help from the Council and the poor way in which it handled his complaints.

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What I have investigated

4. I have investigated matters immediately before Mr X’s eldest child being placed in foster care in February 2019.
5. I have explained at the end of this statement the reasons why I cannot investigate matters prior to this.

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The Ombudsman’s role and powers

6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
7. 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. (Local Government Act 1974, sections 26B and 34D, as amended)
8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
9. 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

10. I have spoken to Mr X (and his wife) about his complaint and considered the information he has provided.
11. I have considered the information the Council has provided in response to my enquiries.
12. 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.
13. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Child Protection and Looked After Children

14. The Children Act 1989 (the Act) says councils have a duty to safeguard and promote the welfare of children within their area who are in need. If a council receives a report of concern about a child it must decide 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.

15. If the initial assessment suggests the child may be suffering, or be likely to suffer, significant harm, the council should hold a multi-agency strategy discussion to enable it to decide whether to initiate safeguarding enquiries under section 47 of the Act.
16. It will be a matter of professional judgement for the social worker, based on their knowledge of the child and carer, that the child’s welfare is not being adequately safeguarded. Children cannot always describe unhappiness so understanding the child’s daily life is key to understanding what may be having a negative impact on the child.
17. A child may become looked after either because they are subject to a care order or because they have been accommodated voluntarily under Section 20 of the Act.
18. Section 20 of the Children Act 1989 says councils should provide accommodation to any child in need within their area who needs it, because:

• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.

19. Councils cannot accommodate a child under Section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child.
20. Parents keep their parental responsibility when their child is looked after. They have a right to be told and consulted about all decisions, usually as part of a looked after child review.

Personal budgets and direct payments

21. A special educational needs (SEN) personal budget is an amount of money identified by the council to deliver provision set out in an Education, Health and Care (EHC) Plan. The Council can identify elements of the provision which can be made via a direct payment. Councils must ensure that children and young people with EHC Plans receive a level of support which will help them “achieve the best possible educational and other outcomes”.
22. There are three main ways in which a personal budget can be administered:

• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party with support provided in line with the person’s wishes;
• As a direct payment.

23. Direct payments are cash payments made to individuals (or their parent/carer) who ask for one to meet some or all their eligible care and support needs. They can provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The Council has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do request direct payments, the council should support them to use and manage the payments properly.
24. Councils must provide information on organisations that can provide advice or assistance to help make informed decisions about personal budgets. The parent/carer or young person must agree to a personal budget and provision by direct payments.

What happened

25. This chronology covers key events but does not detail everything that has happened.
26. Mr and Mrs X adopted Child B and Child C in June 2012. Child B had been placed in Mr and Mrs X’s care since September 2011. Mr and Mrs X adopted Child D at the end of 2012. All three children are siblings.
27. In early February 2019, a Social Worker from the Council visited the family at home following a request from Mr X for help as he and his wife were struggling with Child B’s challenging behaviour. The Social Worker offered to source support and respite for the family.
28. The Social Worker made another visit to the family a week later. Mr and Mrs X told the Social Worker they had reached crisis point with Child B and were no longer able to cope with their challenging behaviour. Mr and Mrs X said they were concerned about the risks Child B posed to the other two children and them. The Social Worker advised Mr and Mrs X to contact the police if they felt Child B posed a risk to other members of the household. The Social Worker offered to source support for the family and asked Mr and Mrs X to see how they managed over the weekend. Mr and Mrs X said the Social Worker advised them to come to the Council’s offices after the weekend if things do not go well so the Council can place Child B in foster care under section 20 of the Children Act 1989.
29. On 18 February 2019, Mrs X brought Child B to the Council’s offices and asked that they be placed in foster care by the Council. Child B was placed with foster carers by the end of the day. The Social Worker that visited Mr and Mrs X referred the matter for a strategy discussion.
30. On 27 February 2019, the Council held a strategy discussion about Mr and Mrs X’s request for Child B to be accommodated by the Council. A panel including Council Officers, representatives from the schools of all three children, adoption social workers and mental health professionals attended the strategy discussion. The panel agreed to convening an Independent Child Protection Conference (ICPC) to start enquiries under section 47 of the Children Act (child protection) as the children were at risk of significant harm. The panel noted that Mr and Mrs X had told the Council they did not want contact with Child B while he remained in foster care. They said they wanted Child B to be permanently placed out of their care.
31. Mr X emailed the Council on 13 and 15 March 2019 to complain about the Council’s decision to place the children on child protection plans. Mr X said he and his wife were shocked and unhappy with the Council’s decision to place their children on child protection plans when they had acted on the Social Worker’s advice when they brought Child B to Council offices. Mr X also complained that the Council’s lack of support since he and his wife had adopted the three children had led to the problems they had experienced.
32. On 19 March 2019, the ICPC met to discuss Mr and Mrs X’s children. The ICPC considered the history of the family and concluded the two children that had remained with Mr and Mrs X were at significant risk of emotional harm caused by the impact of their elder sibling being placed in foster care. The children’s schools had reported how both children had been upset after Child B had left. The ICPC decided the two remaining children should be placed on child protection plans and that support should be given to the family to encourage contact with Child B. By this point, Mr and Mrs X had changed their minds and told the Council they wanted Child B to return to their care.
33. The Council responded to Mr X’s complaints on 24 April 2019. It explained that support had been available to Mr and Mrs X following adoption and that it had found no evidence of the Social Worker’s advice for Child B to be brought to Council offices. The Council did not uphold Mr X’s complaints.
34. Mr X contacted the Council the following day. He provided a copy of an email which showed the Social Worker had agreed to Mrs X bringing Child B to Council offices on 18 February. The Council responded on 29 May 2019. It confirmed it now upheld Mr X’s complaint about the Social Worker’s advice. The Council explained it had raised this issue with the Social Worker’s employer as they were an agency worker. The Council apologised for this aspect of Mr X’s complaint.
35. Mr X emailed the Council again on 2 June 2019 to express his continued dissatisfaction with its complaint responses. He followed this up with an overview of his outstanding concerns on 10 June 2019. The Council confirmed it would investigate Mr X’s continued concerns.
36. The Council met with Mr and Mrs X on 17 July 2019 to discuss the concerns he had raised. The Council agreed that its communication with Mr and Mrs X could have been better and explained it was keen to develop plans with them to support the family. Child B returned to Mr and Mrs X’s care the following day. Mr X brought his complaints about the Council to us in August 2020.
37. The Council continued to provide a package of support for the family until 7 September 2020. This included sessions to help all three children re-establish their relationships, sessions for the whole family and training and support for Mr and Mrs X to help with their approach to parenting.
38. On 3 September 2020, the Council explained to Mr and Mrs X that the package of support the family had been receiving since Child B moved back in would be ending. The Council also explained that assessments of all three children found they did not meet the threshold for support from the Children with Disabilities Team. The Council offered Mr and Mrs X the local offer of five hours of weekly support per child in the form of direct payments. The Council advised Mr and Mrs X to make contact with its Direct Payments Team for help and support with sourcing the support the children needed. The Council also referred the family for support from the Early Help Team and all three children have Education, Health and Social Care Plans.

Analysis

39. Mr and Mrs X have complained about the decision to place Child C and Child D on child protection plans when Child B was placed in foster care. They say this decision was based solely on the false account given by the Social Worker that had been working with the family at the time. Mr and Mrs X say this Social Worker had assured them there would be no repercussions if they asked the Council to accommodate Child B under section 20 of the Children Act.
40. The Council has since upheld Mr and Mrs X’s complaint about the actions of the Social Worker. The Council’s records however show the decision to place the two children remaining in Mr and Mrs X’s care on child protection plans was not based solely upon the account of the Social Worker.
41. The Council’s decision making was based on its knowledge of the family prior to Child B being placed in foster care, together with information obtained during enquiries with the children’s schools and other professionals involved. This together with key information about Mr and Mrs X’s previous interaction with the Council in respect of their children was relevant to its assessment. It was a collective decision to place Child C and Child D on child protection plans following careful consideration of all the information available. I have seen no evidence of fault in the Council’s handling or decision making in this case. Where there is no fault in the way a Council makes a decision, I cannot question the merits of the decision simply because Mr and Mrs X feel it is unfair.
42. Mr and Mrs X have complained the Council has failed to provide appropriate support to the family since they adopted their three children. I have found the Council provided an extensive package of support to the family since Child B was placed in foster care. It is clear the Council was keen to minimise the impact of Child B leaving the family home on their siblings and it sought to quickly establish contact between all three children. The Council also provided a comprehensive package of support to Mr and Mrs X by offering them training to help them better manage their children’s challenging behaviours. The Council continues to support the family with Early Help and the local offer.
43. Mr X has complained to us that he and his wife should not have to source their own support for the children through direct payments. I agree that the Council cannot force Mr and Mrs X to accept direct payments for the support their children receive under the local offer. I have not however seen evidence to show Mr X has told the Council that he would prefer it sourced support for his children. I would however suggest the Council provides this if Mr X now tells it this is what he wants.
44. Mr X says the Council’s decision to end the package of support it had been providing to the family in September 2020 was based on inaccurate information. He says the Council relied too heavily on comments he and his wife had made about recently reconnecting with one of the children’s grandparents as justification for reducing the support package. While the Council’s record does mention this, it does not appear to have been the reason for ending the support package. It appears the Council put this support in place to help the family reunify when Child B returned home and as such it was time limited. As a result, I have found no evidence of fault in the Council’s handling in this respect.
45. In response to our enquiries, the Council has said that Mr X at no point indicated that he wanted to escalate his complaints to stage two. I disagree. It is clear Mr X continued to express dissatisfaction with the Council’s handling and its responses to his concerns into July 2019 and beyond. While I do not criticise the Council’s approach in meeting with Mr and Mrs X to discuss their concerns in July 2019, it might have helped if the Council had explained at the time that it understood that meeting to be the end of the process for Mr and Mrs X’s complaints. This would have then allowed Mr and Mrs X to say whether they agreed or wished to proceed with their complaints.
46. Clarity in complaint handling is important for all parties involved as it helps everyone understand what stage of the process they are at and critically when they have reached the end of the Council’s internal procedure. The lack of clarity in the Council’s handling of Mr and Mrs X’s complaints has caused confusion and frustration to them. It has also unnecessarily prolonged the process for all involved. I understand from the Council that since bringing his concerns to us, Mr X made a further stage two complaint to the Council which, at the time of my enquiries, it was still investigating.
47. While there appears to have been fault in the Council’s complaint handling in this case, I am not persuaded this has caused sufficient injustice to Mr and Mrs X to justify recommending the Council takes any action to remedy this. Mr and Mrs X have still been able to access the Council’s complaints procedure, albeit in a slightly disjointed manner. The Council might however find it helpful to evaluate its complaint handling in this case to see how it might do things differently in future.
48. I understand Mr and Mrs X were caused significant distress by the Council’s actions, but this distress is not directly attributable to any faults in the Council’s handling. The injustice Mr X is claiming stems largely from his view the Council undertook an assessment based purely on the false account of one Social Worker, which I have found not to be the case. There is no doubt any intervention by a council of safeguarding nature can cause a certain amount of incidental distress to those involved. However, I would not expect a council to refrain from acting following the circumstances that led to Child B going into foster care because of the stress it might cause, as the consequences of not acting could be far greater.

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Final decision

49. I have completed my investigation with a finding of fault by the Council that does not cause sufficient injustice to warrant a remedy.

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Parts of the complaint that I did not investigate

50. I have not investigated Mr X’s complaint the Council’s lack of support since he and his wife adopted their children in 2012. This is because these complaints have been brought to us too late for us to complete a robust and fair investigation.

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Investigator's decision on behalf of the Ombudsman