Summary: Miss Y complains about the process followed by the Council when it conducted enquiries and an assessment under Section 47 of the Children Act. We find fault in the Council’s initial assessment of the referral it received. This is because the Council failed to seek permission from Miss Y when it was required to do so, did not explain the process to her and failed to provide a rationale for proceeding with enquiries. On balance, we are satisfied the outcome would have likely been the same based on the retrospective rationale provided by the Council. However, the fault identified caused Miss Y some avoidable frustration, time and trouble which the Council will apologise for and pay £300.

The complaint

1. The complainant, whom I will call Miss Y, complains about the process followed by the Council when it conducted enquiries and an assessment, under Section 47 of the Children Act 1989, regarding allegations of physical and sexual harm against her twin daughters, W and Z.
2. Miss Y says the failures in the Council’s approach have caused significant distress. The S47 documents will remain on her daughters’ records and professionals will have access to this information. Miss Y seeks the removal of those records, as well as a written apology from the Council and a payment to reimburse her lost earnings and the cost of professional legal advice.

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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)

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How I considered this complaint

5. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
6. I made enquiries of the Council and considered its response.
7. I consulted the relevant law and guidance around the safeguarding of children.
8. I issued a draft decision and invited comments from Miss Y and the Council. I considered any comments received before making a final decision.
9. 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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What I found

The Council’s duties

10. Councils have a duty to make enquiries where a child is considered to be suffering or likely to suffer significant harm. The enquiries must establish the child’s situation and to determine whether protective action is required under Section 47 of the Children Act 1989. Significant harm covers the risk of neglect or physical, sexual and emotional abuse.
11. Upon receipt of a referral about a child’s welfare, the council should make initial enquiries of any agencies involved with the child and family, for example, health visitors, GP, schools and nurseries. The information gathering at this stage enables the council to assess the nature and level of any harm the child may be facing. The child and their family must be informed of the action to be taken.
12. The enquiries may result in no further action, a decision to carry out a more detailed assessment of the child’s needs or a decision to convene a Strategy Discussion meeting. Where the outcome is continued involvement, the council will agree a plan of action with other agencies and discuss with the child and family.
13. ‘Working Together to Safeguard Children’ is the relevant statutory government guidance. It says the purpose of an assessment is to:
• gather important information about a child and family
• analyse their needs and the nature or level of any risk or harm
• decide whether the child is ‘in need’ or is suffering or likely to suffer harm
• to provide support to address any needs to improve the child’s welfare
14. The guidance makes clear that, “it is important that the impact of what is happening to a child is clearly identified and that information is gathered, recorded and checked systemically, and discussed with the child and their parents/carers where appropriate.”
15. The Council’s own safeguarding procedure says, “the social worker together with their manager must decide at what point and whether to seek parental permission to undertake multi-agency checks. If the manager decides not to seek permission, they must record the reasons why. For example, it may be prejudicial to the child’s welfare, have serious concerns about the behaviours of the adult or have serious concern that the child would be exposed to immediate risk of harm” and, “the enquiries and assessment should always involve separate interviews with the child and, in the majority of cases, the parents, and the observation of interaction between the parent and child”.

Referral one

16. On 22 November 2019, W’s school made a safeguarding referral to the Council. It had concerns about an injury on W’s leg and that Miss Y had previously disclosed hitting W and Z in the past. The school also relayed comments made by W about her uncle (Miss Y’s brother) sleeping in her bed and that she no longer wants to see him.
17. The Council’s records show its initial view was to close the case as there were no clear disclosures made about any harm suffered by W.
18. Five days later, the Council called Miss Y to tell her that it intended to take no further action following the school’s referral. It said W had not made any specific disclosures and the injury to her leg later transpired to be a result of her falling off a bike. Miss Y had also clarified that her brother had slept in W’s empty bed, at a time when W was sleeping in Z’s bedroom.
19. Miss Y voiced her dissatisfaction with the school and its decision to make a referral. The Council’s notes show it advised Miss Y to discuss her concerns with OFSTED and the Education Department.
20. On 3 December 2019, the Council wrote to Miss Y confirming its decision to close referral one and to take no further action.

Referral two

21. On 27 November 2019 Miss Y made a safeguarding referral to the Council. She said Z had disclosed to her that a teacher touched her in a sexually inappropriate way when assisting her to the toilet.
22. The Council’s notes show it quickly decided that, due to the serious nature of the allegation, it would undertake the necessary checks, speak further with Miss Y, and discuss the matter with the Local Authority Designated Officer (LADO).
23. The following day the Council held a strategy discussion about referral two. The purpose of which was to decide whether to proceed to enquiries. The headteacher of W and Z’s school attended.
24. The Council decided to proceed with a joint investigation with the police to speak to W and Z without Miss Y or her brother present.
25. On 29 November, the social worker responsible for progressing the enquiries called Miss Y to arrange a visit to discuss the allegation, and to speak with W and Z alone. The Council’s notes show the social worker left a voicemail message asking for a call back. The social worker did not receive a call, and so proceeded with the police to visit Miss Y at home.
26. The social worker and police officers spoke with W and Z alone in their bedroom. The Council’s records show that W and Z did not make any disclosures about harm and did not express any worries when speaking about school. The social worker spoke with Miss Y about the possibility of arranging a medical examination for Z, but Miss Y declined as she felt it would be too traumatic unless Z was under sedation.
27. The social worker and the police then visited the school to discuss the allegation. The notes show the head teacher explained the safeguarding procedures in place, and the processes followed by staff regarding the toileting of pupils. The head teacher was certain that neither W or Z had experienced abuse in school and instead suggested they would benefit from some early support.
28. The police and social worker also spoke to the teacher accused of abusing Z. They reported the teacher was very upset and adamant that she had not assisted Z to the toilet, as claimed, because she had been with an OSFTED inspector on the day of Z’s disclosure.
29. The Council and police decided the allegation of abuse against Z was unsubstantiated. The police decided not to pursue a criminal case.
30. The social worker visited Miss Y at home to relay their findings. Miss Y was upset. She suggested that all members of school staff should be spoken to about the incident, and W and Z should have access to speak with a psychologist.
31. On 12 December 2019, the Council decided to end its enquiries. It recorded that the school had satisfied the agencies involved that appropriate safeguards are in place; no staff member is alone with a child when toileting and no physical assistance is provided with toileting. The Council said that neither W or Z had made any disclosures, and instead expressed their like for the teacher. Furthermore, Miss Y had not consented to a medical examination and so it was not possible to gather any further evidence.
32. The Council completed its assessment on 23 December 2019, citing that appropriate and proportionate enquiries had been made which resulted in the allegation being deemed ‘unsubstantiated’. The assessment also noted Miss Y’s “… appropriate, capable parenting skills and understanding of [W and Z’s] needs.”
33. The Council posted a copy of the assessment to Miss Y on 31 December. The covering letter explained the outcome of the S47 enquiries. The Council invited Miss Y to add comments or raise any questions with the social worker. Miss Y subsequently raised some queries, and the Council signed off the final assessment on 15 January 2020.

Assessment and consent

34. Miss Y says the Council should have completed an initial assessment of the reported risk before proceeding with a strategy discussion. She says its failure to do so meant that a S47 investigation commenced unnecessarily, and as a result her daughter’s records are ‘tarnished’.
35. The Council’s procedures state, “an assessment will have commenced at the point of receipt of referral, and it must continue whenever the criteria for Section 47 Enquiries are satisfied”.
36. The threshold for holding a Strategy Discussion is met when the Council has ‘reasonable cause to suspect that a child is suffering or is likely to suffer significant harm’. The ‘Working Together’ guidance also states that, “following acceptance of a referral by the local authority children’s social care, a social worker should lead a multi-agency assessment under Section 17 of the Children Act 1989. Local authorities have a duty to ascertain the child’s wishes and feelings and take account of them when planning the provision of services. Assessments should be carried out in a timely manner reflecting the needs of the individual child, as set out in this chapter.”
37. For serious allegations, such as the one made by Miss Y, both the guidance and the Council’s own procedure say the Council must decide on its next course of action within one working day. It also says that, “the child and family must be informed of the action to be taken. Parents should be informed of the referral and their permission sought to share information with other agencies unless to do so would:
• prejudice any investigations or enquiries. Examples would include interference with witnesses, disposal of evidence such as digital devices or frustrate opportunities for obtaining forensic evidence.
• be prejudicial to the child's welfare and/or safety.
• cause concern that the child would be at risk of further significant harm”.
38. The Council’s records show it contacted Miss Y three working days after receiving referral one. It explained that it was unlikely to progress the matter further due to a lack of evidence and the likelihood that W sustained injuries due to falling off her bike. Although the Council did not seek Miss Y’s permission to share information after it received referral one, I find this caused no injustice to Miss Y because the Council quickly decided to take no further action (NFA) as per its case note on 27 November 2019. It confirmed this in writing to Miss Y on 3 December 2019.
39. Miss Y called the Council to query the letter she received because it did not make clear whether the decision to NFA was in relation to referral one or two. I have reviewed the letter in question, and I agree that it is unclear and lacks information.
40. Turning to referral two, I also find the Council failed in its initial assessment because it did not seek Miss Y’s permission to contact other agencies before convening the Strategy Discussion. Although the Council is entitled in some exceptional circumstances to proceed without permission, it should clearly explain its rationale. It did not do so, and this is fault.
41. I also found the Council failed to explain to Miss Y that it intended to proceed to a Strategy Discussion. The statutory guidance makes clear that councils should begin the initial assessment process upon receipt of a referral, and part of that process is to begin gathering the wishes and feelings of parents and children. The Council’s records show it only contacted Miss Y on 29 November which was one day after the Strategy Discussion meeting had taken place. This is fault.
42. With that said, Miss Y was the referrer for allegation two, and she would therefore have some expectation the Council would act following the serious allegation she made. I therefore find the failure to have an initial discussion and to obtain Miss Y’s views before proceeding to a Strategy Discussion caused some injustice, but there is no evidence to suggest it impacted on the eventual outcome.
43. Miss Y says she is upset that W and Z’s records will be ‘tarnished’ following the Council’s investigations. She is also worried about being perceived as a perpetrator of abuse. However, the enquiries made regarding referral two were a result of the allegation Miss Y made. Miss Y is not referenced as a cause of abuse or neglect, and to the contrary the Council noted that she is a good parent and has a strong bond with her children. In my view, the injustice Miss Y claims does not flow from fault by the Council, and there are no grounds to ask for the records to be removed as Miss Y requests.

Conflict of interest

44. Miss Y complains about the attendance of the school’s headteacher at the Strategy Discussion. Miss Y says this created a conflict of interest because the allegation of harm was against a teacher at the same school.
45. I have considered whether the Council acted with fault when it invited the head teacher to the Strategy Discussion and, if so, whether it impacted on the outcome of the meeting. The Council’s procedures make clear that it will include all agencies involved with the child, including the child’s school, “The strategy discussion/meeting should be co-ordinated and chaired by a Children's social care manager. The strategy discussion/meeting should involve Children's social care and the police, health professionals involved with the child and/or named/designated nurse and/or named/designated doctor and other bodies as appropriate (for example, children's centre/school and, in particular, any referring agency)”
46. While I understand why Miss Y perceives the input of the head teacher may have influenced the Council’s decision, I have found no evidence to support that claim. The Council acted in line with its procedure when including the school and despite the head teacher’s input at the meeting, the Council proceeded with its investigation. I do not uphold this part of Miss Y’s complaint.

Council’s acknowledgment of fault

47. In response to Miss Y’s complaint, the Council acknowledged there was some fault in the safeguarding process and has proposed remedial steps:
• Rationale was not explicit on the file as to why Miss Y’s consent was not sought before progressing from referral to Strategy Discussion. The team manager will retrospectively enter case notes confirming why Miss Y was not informed. This is because the Strategy Discussion should set out how parents are involved.
• The Strategy Discussion did not record a clear and full rationale why S47 investigation was agreed. The Council will provide retrospective justification for why the S47 was launched and clarify the decision making on the file.
• Miss Y did not fully understand her rights during the investigation. The Council will produce appropriate paperwork and leaflets for families when a S47 investigation is to be carried out, including information about parents’ rights.
48. For the reasons explained in the previous section of this statement, I agree with the findings already made by the Council. I do not consider the fault caused the level of significant injustice which Miss Y claims. However, in my view the fault did cause avoidable frustration, time and trouble which the Council will provide a personal remedy for as outlined in the following section of this statement.

Agreed action

49. Within four weeks of my final decision, the Council will:
• Provide evidence to the Ombudsman of the remedial action already agreed in paragraph 47 of this statement; and
• Apologise to Miss Y for the fault identified and make a payment of £300 in recognition of the frustration, time and trouble caused by that fault.

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Final decision

50. We have completed our investigation with a finding of fault causing injustice. The Council has agreed to provide a suitable remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman