Decision : Upheld
Decision date : 29 Mar 2021
The Ombudsman's final decision:
Summary: We consider that Halton Borough Council did not clearly explain the section 47 enquiry process or explain why it changed its supervision arrangements for Mrs X’s daughter. That was distressing for Mrs X. Also, we consider the Council, Warrington & Halton Hospitals NHS Foundation Trust and Halton Clinical Commissioning Group’s poor complaint handling led to significant delays which caused Mrs X frustration and time and trouble.
- Mrs X complains about the actions of Warrington & Halton Hospitals NHS Foundation Trust (the Trust) and Halton Borough Council (the Council) in June 2019. Specifically, she says:
- The Trust made an unwarranted safeguarding referral to the Council when her daughter, Y, fractured her foot. No professionals were concerned the injury was non-accidental. The Council should have considered a professional’s view (from a different Trust) the referral was not necessary.
- Staff misrepresented her views at the strategy discussion and painted her as an uncaring mother.
- The social workers were not transparent during the section 47 enquiry.
- Y had to have two unnecessary skeletal surveys as part of a child protection medical, and Mrs X could not go with her to the first one.
- A social worker wanted to carry out a child protection medical on her son, even though he was not subject to the referral.
- After she withdrew consent to the section 17 (child in need) enquiry, a social worker still wished to complete an assessment.
- The referral and enquiry were traumatic for the family, and she now has anxiety.
- The stress and trauma impacted her in vitro fertilisation (IVF) treatment, which did not work.
- She questions her personal judgement at work when handling safeguarding concerns and referrals.
- She stopped giving her daughter medication for acid reflux as she was worried her daughter would fracture something again.
- She feels so scared for her daughter she feels she holds her back.
- Her daughter was in distress during the first skeletal survey and exposed to unnecessary radiation at the second skeletal survey.
- An apology from the Council and Trust for not following the safeguarding procedures.
- An apology from the Council for the social worker’s poor practice.
- The Council and the Trust to add an addendum to its records to reflect any mistakes.
- The organisations to use this case as an anonymised example to drive service improvements.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- The Ombudsmen cannot question whether an organisation’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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered information provided by Mrs X, the Council, the Trust and the CCG. I have also spoken with Mrs X on the telephone. Mrs X and those organisations had an opportunity to comment on two draft decisions, and I considered their comments.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
- Y suffered two separate fractures (foot and skull) in August 2018. On each occasion Mrs X took Y to different hospitals, including Alder Hey.
- On 4 June 2019, Y, who was nearly two years old, fell on the stairs. Mrs X took her to Halton General Hospital (Halton), who diagnosed a buckle fracture (when one side of the wrist buckles but does not break all the way). Halton arranged a follow up at Warrington General Hospital (Warrington). Halton checked if Y was known to the Council’s Childrens Social Care. The Council said no.
- Two days later, Warrington called the Council for advice about Y. The Council suggested Warrington make a safeguarding referral if it was concerned for Y.
- Warrington put in a safeguarding referral to the Council on Friday 7 June. It was concerned that Y had suffered multiple fractures within the last 12 months.
- The Council held a strategy discussion the same day and agreed to start section 47 (child protection) enquiries. That evening, a social worker made an unannounced visit to Mrs X’s home to carry out a child and family assessment. The social worker asked that Y and Mrs X’s son, Z, should be supervised by a grandparent over the weekend.
- On 10 June, the social worker said Mrs X needed to take Y to Warrington that evening for a child protection medical. Warrington admitted Y overnight and Mrs X stayed with her.
- The next day, Warrington carried out the child protection medical. Y’s fractures were consistent with accidental injuries. As a result, the Council stepped Y down to a section 17 enquiry. The Council wished to complete its child and family assessment. The social worker said the assessment was not compulsory. Mrs X withdrew her consent, and the Council later closed the safeguarding investigation.
The safeguarding referral
- Anyone who is concerned that a child is suffering or at risk of harm should inform the Council. Health bodies should be alert to the possibility that children may be at risk of harm and refer their concerns to the local authority for assessment.
- The Trust’s Safeguarding Children and Young Persons Policy states all referrals should be completed in line with the correct local authority pathway.
- The Halton Children and Young People Safeguarding Partnership Online Procedures state referrals should include certain information. They also state the referrer should record in the referral if they decide not to seek parental permission before making a referral.
- I have reviewed the Trust’s safeguarding referral, and what evidence the Trust considered before it made the safeguarding referral.
- I consider the Trust completed the referral in line with the local procedures. I will explain why.
- The Trust told me its Safeguarding Lead spoke to the community safeguarding team, Alder Hey, and clinicians who assessed Y in 2018 and 2019. Also, the Trust tried to speak to Y’s GP but could not get through to them. The Trust has provided evidence to confirm that. I am satisfied the Trust robustly reviewed Y’s medical records from previous admissions and considered Mrs X’s explanation for the fractures (bone density issues).
- I understand why Mrs X is unhappy, because from admissions in 2018 no one raised safeguarding concerns about the fractures. However, the Trust’s safeguarding referral was not to look at the fractures in isolation. The Trust was concerned about the number of fractures, and the way Mrs X sought treatment for them (taking Y to different hospitals). I do not doubt Mrs X was taking Y to different hospitals in Y’s best interests. But I consider the Trust has appropriately explained why it still had concerns about that pattern.
- Mrs X says a member of a different Trust’s safeguarding team (Person A) did not agree the safeguarding referral was necessary.
- I agree that Person A had a different view to the Trust’s safeguarding team. However, I have seen evidence the Trust considered Person A’s view and balanced it with its own broader concerns about Y. I am satisfied the Trust appropriately considered Person A’s view. I cannot find fault with how the Trust considered opposing views. Just because Person A had an opposing view did not mean they referred Y with fault.
- Overall, I am satisfied the Trust’s safeguarding team had genuine concerns that Y might be a significant risk of harm or abuse.
- Mrs X told me no one tried to contact her before the social workers arrived at her house the next day. The referral noted “have been unable to contact mum”.
- I do not consider the Trust’s records were clear or robust. The Trust should have detailed how it had tried to contact Mrs X, or if it did not seek her permission for the referral, explain why. The Trust did not do either, which was fault.
- I consider if the Trust had not acted with fault, it would still most likely have made the safeguarding referral. It would have either told Mrs X it would be making a safeguarding referral or not tell her it was going to. Both of those would have been distressing. However, a phone call from the nurse who made the referral would have lessened the distress Mrs X suffered when social workers arrived at her house unannounced.
- In August 2019, the Trust told the CCG the nurse recognised she did not contact Mrs X before making the referral. The nurse was sorry and had reflected on her practice. While I am happy the Trust has recognised this fault and provided a remedy, it should make that apology directly to Mrs X.
The strategy discussion
- Mrs X said the strategy discussion meeting misrepresented her views. She disagreed that she was trying to avoid detection when she took her daughter to different hospitals for the fractures.
- The Halton Children and Young People Safeguarding Partnership Online Procedures set out how agencies and individuals should work together to safeguard and promote the welfare of children and young people. They state if there is a reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm, there should a be a strategy discussion. The strategy discussion should involve health practitioners and share information about the concern. The strategy meeting should decide if an assessment under section 47 is necessary and consider the need for a child protection medical.
- I have reviewed the strategy discussion minutes, and what information the Council and Trust presented.
- I am satisfied the Trust shared the appropriate information with the Council at the strategy discussion. The Council told me the strategy discussion examined those medical records. The strategy discussion noted there was no pattern to the family members present when Y suffered the fractures. Also, it considered Y had bone density issues. However, the Council needed to make section 47 enquiries to get information from the family members about the fractures. I am not persuaded the strategy discussion misrepresented Mrs X’s views on 7 June 2019.
- Three days later, before the Council asked Mrs X to bring Y to the Trust, the social worker spoke to Person A. Person A again raised concerns about the referral and section 47 enquiries. In response the social worker said: “...a hypothesis that is being considered is that they wanted to avoid attending the same hospital to avoid detection however this is not certain at this stage”.
- I understand how Mrs X felt the social worker was misrepresenting her. As I have already said, I do not doubt Mrs X was acting in her daughter’s best interests by taking her to different hospitals. However, I cannot question the Council and Trust’s professional judgement because I am not persuaded they acted with fault in how they made that decision.
The section 47 enquiry
- Mrs X says no one told her what the section 47 enquiries would involve.
- Councils have a duty to conduct an investigation if they have reasonable cause to suspect that a child who lives in their area is suffering, or is likely to suffer, significant harm. (Children Act 1989, section 47(1))
- Under section 47 of the Children Act 1989, councils 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. This may involve an initial assessment and a ‘core’ assessment (a more in-depth assessment). Assessments are intended, for example, to analyse a child’s needs and the risk of harm to the child.
- The Halton Children and Young People Safeguarding Partnership Procedures state:
- “Parents should be enabled to participate fully in the assessment and enquiry process, which must be explained to them verbally and also in writing by providing local information leaflets”
- “The social worker has the main responsibility to engage with parents and other family members to ascertain the facts of the situation causing concern...”
- “...Parents must be kept informed throughout the enquiry, its outcome and any subsequent action unless this would jeopardise the welfare of the child”
The child protection medical
- Mrs X says Y had to have two unnecessary skeletal surveys as part of child protection medical.
- The Halton Children and Young People Safeguarding Partnership Procedures say strategy discussions must consider, in consultation with the named doctor/paediatrician, the need for a medical assessment where there is a suspicion of any form of abuse to a child.
- The Trust’s Imaging for Suspected Physical Abuse (Paediatrics) (2018) policy ensures best practice when imaging for suspected abuse in children. The policy states that a skeletal survey should be performed to identify suspected injuries and decide if they are consistent with clinical information. A follow up skeletal survey should be carried out up to two weeks after the initial survey. The repeat examination identifies healing fractures which may have not been present on the initial imaging. It provides additional information about the fractures identified on the initial image.
- The Royal College of Radiologists and The Society and College of Radiographers The radiological investigation of suspected physical abuse in children (2018) states:
- “If individuals with parental responsibility wish to be present, and there are no concerns regarding the immediate safety of the child, this should be encouraged”.
- “Even if the skeletal survey is normal, all children should have follow-up imaging. This is because follow-up imaging may identify fractures which only become visible while healing.”
- The Council said it was the Trust’s medical opinion to carry out a child protection medical. The skeletal survey was necessary to consider if Y had any other injuries.
- The Trust said it followed its policy when carrying out the skeletal surveys. It needed to be sure there were no other injuries, blood or bone disorders. The second skeletal survey is integral to pick up hidden fractures.
Withdrawal of consent
- Mrs X says the Council should have obtained her consent when it stepped Y down from a section 47 to section 17 enquiry.
- The Council’s Safeguarding Children Induction Booklet; an introduction to Safegaurding children for the workforce in Halton states: “You will always need to gain consent for child in needs cases”.
- The national guidance Working together to safeguarding children (2018), does not state that parental consent is required before carrying out section 17 enquiries.
- I consider it would have been good practice for the social worker to obtain Mrs X’s consent when the Council stepped Y down to a section 17 enquiry. I agree it did not act in line with its own policy. However, I do not consider that amounted to fault. The Council did not act outside the national guidance for the section 17 enquiry.
- Mrs X says when the safeguarding concerns were not substantiated, the Council tried carrying out an assessment. That was despite Mrs X withdrawing consent.
- The Halton Children and Young People Safeguarding Partnership Procedures say that when concerns are not substantiated, social workers with their managers should:
- “Discuss the case with the child, parents and other practitioners...
- Determine whether the support from any services may be helpful and help to secure it...
- Consider whether the child’s health and development should be re-assessed regularly against specific objectives and decide who has responsibility for doing this”.
- Mrs X complained to the Council, the CCG and the Local Safeguarding Childrens Board in June 2019. She sought a coordinated response.
- The CCG assigned an Investigator to Mrs X’s complaint in mid-July. It would respond to the Council on behalf of the Trust.
- In late July, Mrs X sent the CCG a further complaint letter.
- The Trust sent its response to the CCG in August. Around the same time, the Council was chasing the CCG.
- In early September, Mrs X reiterated she wanted the Council, Trust and CCG to provide a coordinated response.
- In mid-September, the Council asked the CCG if it needed support chasing the Trust. A few weeks later, the CCG told the Council it had received responses about the safeguarding referral.
- In mid-November, the CCG told the Council it would not comment on the safeguarding referral. The Council told the CCG it was not happy. It had waited four months for the CCG only to say it would not comment on the safeguarding referral. The CCG agreed to return to the Trust and enquire about the safeguarding referral.
- The Trust provided a second response to the CCG in December.
- In January 2020, the Council apologised for the delays providing its response. It offered Mrs X the option of a Council-only response. Mrs X said she wanted a co‑ordinated response from all the organisations.
- The Council provided its Stage 1 response in April, without the CCG or Trust’s response to Mrs X’s complaint.
- In June, Mrs X asked for the Council to escalate her complaint to Stage 2.
- The Council sent its proposed Stage 2 response to the CCG and agreed to consider its views. The Council later sent its Stage 2 response to Mrs X in mid‑August without the CCG’s comments.
- After the Ombudsmen started to investigate Mrs X’s complaint, the CCG addressed Mrs X’s health complaints in February 2021.
- I have considered the Council, Trust and CCG’s compliant correspondence.
- I consider the organisations involved failed to provide a coordinated response (when it should have done), and significantly delayed responding to Mrs X’s complaint. That was fault and I will explain why below.
- The Council and the CCG were responsible for coordinating a response to Mrs X’s complaint. They both said the difficulties providing one (which led to delays) was because Mrs X’s complaint involved two sets of complaint legislation which had different timescales and processes. Those were:
- The Children Act 1989 statutory complaint procedures (the statutory complaint procedure)
- The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the Regulations)
- The Trust told me it understood the CCG was providing a coordinated response. It had not received any communication from the Council.
- The Council said it should have escalated its concerns to a senior manager at the Trust sooner. It is reviewing its Cross Boundary Complaints Policy with the relevant organisations.
- The CCG accepted it did not fully address Mrs X’s complaints about the Trust and apologised for handling her complaint poorly.
- Within four weeks, the Council should:
- Apologise to Mrs X for the uncertainty and distress caused by not explaining the section 47 enquiry process. Also, for not explaining the reason for changing the safeguarding arrangements on 10 June 2019.
- Apologise to Mrs X for the frustration, distress and time and trouble caused by delays handling her complaints after January 2020.
- Ensure that staff record when they have verbally explained the section 47 enquiry process to families.
- The Council should share a copy of LGSCO’s 2015 report ‘Are we getting the best from children’s social care complaints?’ to relevant staff. This should remind them to use the correct procedure when handling complaints about section 47 enquiries.
- Apologise for the confusion caused by telling Mrs X she had received the Trust’s August and December 2019 letters.
- Apologise to Mrs X for the uncertainty caused by not fully addressing Mrs X’s health complaints.
- Apologise to Mrs X for the unnecessary distress caused by the nurse not communicating the safeguarding referral to her.
- Apologise to Mrs X for the distress caused by witnessing the distress Y suffered during the first skeletal survey.
- Apologise to Mrs X for the unnecessary distress caused by communicating the Council’s consideration of a child protection medical for Z.
- Apologise to Mrs X for the uncertainty caused by not fully addressing Mrs X’s health complaints.
- I have not found fault in how the Trust raised safeguarding concerns to the Council. However, the Trust did cause Mrs X unnecessary distress from its communication and not allowing her to be with Y during the skeletal survey.
- The Council did not clearly explain the section 47 enquiry process to Mrs X, or explain why it decided to change the safeguarding arrangements on 10 June 2019. That caused Mrs X uncertainty and distress.
- The Council, Trust and CCGs handling of Mrs X’s complaints was poor. That caused her frustration, distress and time and trouble.
- The Council, Trust and CCG have agreed actions as set out above. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman