Summary: Mr X complained the Council told his ex-wife to stop all contact between him and his daughter. Mr X complained the Council failed to follow through on the actions outlined in the Stage 2 response of February 2020. Mr X also complained the Council failed to make accommodations for his Autism Spectrum Disorder. Mr X says the Council’s actions meant he did not see his daughter for three months and he needed to take legal action to regain access which came at a financial cost. The Ombudsman found fault with the Council. The Council has already carried out recommendations from its Stage 2 independent investigation. The Council should also provide training to its staff about making accommodations for people with disabilities and completing balanced investigations.

The complaint

1. Mr X complained the Council told his ex-wife to stop all contact between him and his daughter. Mr X says the Council ignored information from him, childcare professionals, the police, and medical records when recommending Mrs X stopped contact.
2. Mr X complained the Council failed to follow through on the actions outlined in the Stage 2 response dated 20 February 2020.
3. Mr X also complained the Council failed to make accommodations for his Autism Spectrum Disorder (ASD). Mr X also complained the Council showed a gendered bias towards Mrs X.
4. Mr X says he did not see his daughter for three months because of the Council’s actions. Mr X says he suffered distress through the lack of contact with his daughter and the Council’s accusations of abuse. Mr X says he had to start legal action to regain access to his daughter which came at a financial cost.

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The Ombudsman’s role and powers

5. 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)
6. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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

8. I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X and the Council had the opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

Protecting Children from harm

10. Government guidance, “working together to safeguard children 2015” says that if at any time it is considered that a child has suffered significant harm or is likely to do so, a referral should be made to the council. This referral can be made by any professional.
11. For all referrals to Children's social care, the child should be regarded as potentially a child in need, and the referral should be evaluated on the same day that it was received. A decision must be made by a qualified social worker supported by line manager within one working day about the type of response that is required. This assessment may result in:
• No further action
• A decision to carry out a more detailed assessment of the child’s needs
• A decision to convene a strategy meeting.
12. Where initial assessment shows a child is suffering or is likely to suffer significant harm the council and the police hold a strategy discussion. The purpose of a strategy discussion is to decide immediate safeguarding actions and to decide the extent of information giving, especially to parents. A strategy meeting may include other professionals involved with the child. The Council must meet with the child prior to a strategy meeting.
13. Guidance states that parent’s views should also be incorporated into assessments.
14. In case where significant harm is still a concern, the strategy discussion must decide whether to make enquiries under Section 47 of the Children Act 1989.
15. Section 47 of the Act places a duty on agencies, but mainly the council and the police, to make such enquiries as they consider necessary to enable them to decide whether to take action to safeguard or promote the welfare of a child in their area.

The statutory complaints procedure for children’s complaints

16. The Act 1989 established the requirement for local authorities to have a formal complaints procedure to deal primarily with complaints by and on behalf of children and young people.
17. This procedure is set out in the 2006 guidance Getting the Best from Complaints (the Guidance). The process has a three-stage structure:
• At stage one, a Council has 10 working days to respond to a complaint with a further 10 working days for more complex complaints. If a complainant is not satisfied, they can ask for a stage two investigation.
• A stage 2 investigation should be completed, and a response sent within 25 working days. A stage two investigation timeframe starts when the person asks for it. In a complex complaint this may be extended to a maximum of 65 working days. stage two investigations are overseen by an independent person.
• A person can request a review panel at stage 3 within 20 working days of the stage 2 response. The Council has 30 working days to hold the review panel, 5 working days for the panel to issue its findings following by 15 working days for the Council to provide its response.

Background

18. Mr X had a daughter, Y, with Mrs X in 2017. Y became known to the Council in 2018 following a physical altercation between Mr X and Mrs X in front of Y. The Council completed a First Social Work Assessment in October 2018 and closed the case.
19. Mr X and Mrs X separated and share parental responsibility of Y in February 2019.

What Happened

20. Mr X reported Mrs X to the police for historic domestic abuse on 16 May 2019. The Council made a safeguarding referral to the Council over concerns about Y.
21. Mr X and his mother spent the day with Y on 17 May 2019. Mrs X called the police to advise she did not know where Y was. When Mr X visited Y’s nursery with Y and his mother, Mrs X arranged for the police to attend. The police discussed this matter with Mr X and his mother.
22. The Council received the police referral on 22 May 2019. The Council’s Multi-Agency Safeguarding Hub (MASH) accepted the referral on 23 May 2019. The Council decided it needed to investigate the matter further before holding a multidisciplinary meeting to discuss a Section 47 investigation.
23. A council social worker attended Mrs X’s property and met with Mrs X and Y. Council social workers also attended Mr X’s property and met with him but did not observe him with Y. The Council contacted Y’s nursery for information.
24. Mr X called the Council on 21 June 2019. During this call, Mr X expressed suicidal thoughts. The Council contacted the police who arranged a welfare visit to Mr X. Mr X sought help for his mental health and completed a mental health risk assessment with the NHS Trust on 21 June 2019.
25. Two council social workers met with Mr X on 26 June 2019. The Council produced a Risk Assessment Plan on this date because of the concerns it had about Mr X’s mental state. The Council said Mr X’s suicidal ideation could have a potential impact on Y and the Council had concerns about Y’s wellbeing. The Council recommended that Mr X should be supervised with Y while he worked on his mental state.
26. Mr X attended a GP appointment for his mental health on 27 June 2019. On this date, Mrs X removed Y from nursery without telling Mr X. The Council advised it could not tell Mr X of Y’s location because of Mrs X’s parental rights. Mr X complained to the Council. Mr X complained that:
• The Council told Mrs X about the referral from the police which risked the police investigation.
• The Council ignored information he provided.
• The Council had recommended he does not see his daughter unaccompanied. This had caused Mrs X to restrict all access to Y.
• The Council had not obtained all relevant information in its investigation.
27. The Council accepted Mr X’s complaint on 1 July 2019. The Council agreed to meet with Mr X on 12 July 2019 to discuss his complaint.
28. The Council held its strategy meeting on 11 July 2019. Council social workers, a representative from the local police force and the manager of Y’s nursery attended the strategy meeting. The Council did not arrange for attendance from the police force handling Mr X’s complaint about domestic abuse by Mrs X, Mr X’s domestic abuse worker or health workers. The Council noted no concerns about Mrs X’s interactions with Y. However, the Council social workers expressed concerns about Mr X’s mental state and the potential impact on Y. The Council decided that Mrs X was not a concern, but Mr X’s mental health state was a concern for Y’s well-being. The Council decided to complete a Section 47 investigation.
29. The Council spoke to Mrs X on 11 July 2019 and advised she could continue with only supervised contact between Mr X and Y, but this was only a recommendation from the Council. The Council told Mrs X she could restrict contact between Mr X and Y if she chose.
30. The Council met with Mr X as planned on 12 July 2019 to discuss his complaint. Mr X says Mrs X restricted all access between himself and his parents with Y in July 2019.
31. The Council completed its Section 47 investigation on 19 July 2019 and proceeded to a single assessment. The Council closed its single assessment with no further action needed on 23 July 2019. This was because Y lived with Mrs X, who had stopped contact between Mr X and Y, and the Council had no concerns about Mrs X with Y. The Council said access to Y for Mr X was a private law matter which did not concern the Council.
32. The Council provided its Stage 1 response on 31 July 2019. The Council said:
• There was no evidence it had told Mrs X about Mr X’s complaint to the police.
• Its investigation was separate to the police investigation. The Council did not impact on the police’s decision to close its investigation.
• It did not ignore the information Mr X provided.
• Its decision was in the best interests of Y and did not take sides of either Mr X or Mrs X.
• It did not tell Mrs X to stop all contact between Mr X and Y but did tell Mrs X about Mr X’s suicidal thoughts so Mrs X could make an informed decision.
• Mrs X is Y’s main carer and has the right to make decisions over Y’s care. The Council needed Mrs X’s permission to share information with Mr X.
• Mr X should go to court to get access to Y as this is a civil matter.
33. The Council sent the outcome of its single assessment to Mr X on 2 August 2019. However, the letter to Mr X contains an inaccurate postcode and the Council cannot show it sent the outcome to Mrs X.
34. Mr X provided the Council with information from a family psychologist confirming his diagnosis of ASD and from a domestic abuse support worker to confirm he was getting support as a victim of support as a victim of, or person at risk of domestic violence as well as emotional support.
35. Mr X asked the Council to consider his complaint at Stage 2 on 26 August 2019. Mr X also took separate legal action against Mrs X for access to Y. Mrs X had continued to deny all contact with Y telling Mr X the Council advised her to do so.
36. The Council confirmed it had assigned an investigator and independent person for Mr X’s Stage 2 complaint on 17 September 2019. The investigator stepped down on 24 September 2019, but the Council appointed a new investigator on 1 October 2019.
37. The investigator met with Mr X and issued his draft statement of complaint on 1 November 2019. Following several amendments Mr X agreed to his statement of complaint on 25 November 2019. The investigator broke down Mr X’s complaint into six main complaints, these were:
1. The Council told Mrs X about Mr X’s complaint to the police following the police’s safeguarding referral about Y.
2. The Council ignored Mr X’s evidence.
3. The Council did not respond to Mr X in an appropriate or professional manner. The independent investigator put this into sub-complaints a) through f) including complaints about lack of adjustments for Mr X’s ASD and misinformation presented by the Council’s social workers.
4. The Council recommended to Mrs X she only lets Mr X see Y when supervised and to restrict access altogether.
5. The Council withheld information about Y’s whereabouts when Mrs X removed Y from nursery.
6. The Council did not gather information or request attendance from the most appropriate professionals for the strategy meeting held on 11 July 2019.
38. Mr X attended court in January 2020 and regained access to Y.
39. The investigator produced her report on 7 February 2020 in response to the Stage 2 complaint points detailed in paragraph 36. This report said:
1. The police decided to close its investigation without influence from the Council. The report did not uphold complaint 1.
2. The Council used misleading information which favoured Mrs X over Mr X. The report noted the social workers did not try to observe Mr X with Y. However, the investigator found no evidence of gender bias. Overall, the report upheld complaint 2.
3. The investigator upheld sub-complaints 3a), 3b), 3d) and 3e). The investigator found fault with the Council for failing to make a call-back and failing to obtain relevant information from Y’s nursery. The investigator also found fault with the Council for failing to make adjustments for Mr X’s ASD, failing to check what, if any, support Mr X was getting for his mental health and failing to review evidence of support sought provided by Mr X.
4. The Council recommended to Mrs X she restricts contact between Mr X and Y, this was in line with correct process. However, the Council made this recommendation on limited information and bias against Mr X. The report partially upheld complaint 4.
5. The Council took the correct approach to diffuse the situation around the change in nursery rather than intentionally trying to withhold information from Mr X. The report did not uphold complaint 5.
6. The Council failed to obtain all relevant information or attendance from the relevant professionals at the strategy meeting. Despite the Council arranging the meeting to discuss Mr X’s mental health, no professional was present who could provide input on Mr X’s mental health. The report upheld complaint 6.
40. The investigator’s report detailed the following outcomes:
• Provides apologies to Mr X for its failings.
• The Council to provide training about domestic abuse.
• Confirmation on Y’s file of the outcome of this investigation.
• Provide reassurance the Council has learned lessons from Mr X’s experience.
• The Council reminds practitioners on the important of clear reporting, evidence based analysis and providers supervision and support to new social workers.
41. The Council wrote to Mr X on 20 February 2020 with the outcome of its Stage 2 process. The Council set out how it would fulfil the recommendations from the independent investigation.
• The Council apologised to Mr X for:
1. Not calling Mr X back and the general quality of service provided.
2. Not getting relevant information.
3. The lack of understanding about Mr X’s ASD and failure to make adjustments.
4. Failing to understand Mr X’s mental health and stating he was not acting upon this.
5. The lack of relevant professionals at the strategy meeting.
• The Council offered to meet in person, as head of the service, to provide an apology.
• The Council confirmed it would place the outcome of this investigation on Y’s record.
• The Council would incorporate the lessons from this independent investigation into its programme of training.
42. The Council produced a training and information tool “Practice Fundamentals Tool” for its staff. This tool provided guidance on evidence-based investigations, clear and accurate record keeping and management supervision for new social workers.
43. The Council also placed the investigation and outcome of Mr X’s complaint onto Y’s record.

Analysis

44. I have reviewed the stage two report. I am satisfied the stage two investigation considered all the relevant information available. In doing so, the stage two investigation found fault with the Council on many aspects of Mr X’s complaint.
45. Where the investigator has already found fault, and the Council has agreed, it is suitable to rely on the findings reached at stage two. If the Council has already acted to address the fault identified, it is not for the Ombudsman to request repeated remedial action.

Council Recommendation about Contact between Mr X and Y

46. Mr X complained the Council told Mrs X to restrict all contact between Mr X and Y. Mr X says this not only caused distress but caused him to incur legal fees to regain access to his daughter.
47. I have reviewed the information provided by Mr X and the Council including the Stage 2 investigation and Cafcass report prepared for the Court proceedings. The evidence shows Mrs X told Mr X the Council advised her to restrict Mr X’s contact with Y. The evidence also shows Mrs X told Mr X she would allow contact again once the Council provides recommendation to do so.
48. However, the evidence does not support the Council told Mrs X to restrict all access between Mr X and Y. The Council recommended supervised contact between Mr X and Y in June and July 2019. The Council’s recommendation was due to its, although misinformed, concerns about Mr X’s mental state and the potential harm this could present to Y. The Council can make informed recommendations to a parent to safeguard a child.
49. The Council did tell Mrs X she could restrict all contact, but this would be her decision. I would not consider this to be the Council instructing Mrs X to stop all contact.
50. I agree with the Stage 2 investigation that the Council’s recommendation to restrict contact was ill-informed. The Council failed to get all relevant information about Mr X’s mental state and failed to have the relevant professional at the strategy meeting who could comment on Mr X’s mental health; this is fault.
51. The Council heavily influenced Mrs X’s decision over only allowing supervised contact between Mr X and Y in June 2019 and July 2019. But the Council did not recommend Mrs X stopped all contact. The Council also closed its single assessment on 23 July 2019.
52. Mrs X’s decision to restrict Mr X’s access to Y is a civil matter, as are the resulting legal proceedings. The Ombudsman has no powers to make a finding about whether Mr X is allowed access to Y as this has been before the courts.
53. However, the Ombudsman can address the Council’s actions in the lead up to a court case. Mr X’s court case does not involve the Council or any information the Council gave to Mrs X putting this firmly within the remit of the Ombudsman.
54. The Council has already apologised for failing to get the relevant information about Mr X’s mental state and failing to have the relevant professional at the strategy meeting. The Council has also created a training and information tool to help staff moving forwards because of the faults highlighted by Mr X’s complaint.
55. I do not consider the above actions sufficient to address the impact of the Council’s actions on Mr X.
56. When the Council closed its single assessment, it should have told both Mr X and Mrs X there was no role for the Council. The Council did not attempt to inform Mrs X and the letter sent to Mr X was sent to an incorrect address. This is fault.
57. Because of this fault, Mrs X would not have been aware the Council’s role had ended. In Mrs X’s statement in the court documents, she advised she had no concerns over Y with Mr X until the Council’s involvement and the Council advised her to restrict contact.
58. This fault caused Mrs X to continue to restrict contact between Y and Mr X. While any decision about contact between Mr X and Y was ultimately Mrs X’s decision to make, the Council advised Mrs X to this course of action. This caused Mr X an injustice through restrictions in contact with his daughter for seven months.
59. Mr X made the decision to go to court rather than seeking mediation or continuing to attempt informal dialogue with Mrs X. Mr X taking Mrs X to court was not a direct cause of the fault by the Council, although it is undeniably linked. For this reason, the Ombudsman cannot justify the rebate of any legal fees by the Council.
60. However, the Council should provide Mr X with a payment of £300 to reflect the distress the Council’s fault caused him.

Council’s action from Stage 2 response

61. The Council promised to complete the actions recommended by the investigator’s report. Mr X complained the Council did not follow through on these promises.
62. The Council provided evidence of apologies it made to Mr X. The Council apologised in its letter dated 20 February 2020 for the fault highlighted by the investigator. The Council’s head of service also offered to meet with Mr X to provide a personal apology. I am satisfied the Council provided the promised apologises.
63. While Mr X has asked the social workers apologise personally for their fault, it is not appropriate for the Ombudsman to recommend individual apologies. The Council is ultimately responsible for the actions of its employees. The Ombudsman therefore deems a corporate apology is satisfactory.
64. The Council has shown it placed a copy of the investigation on Y’s record. This includes apologies for the Council’s fault. However, the Stage 2 investigator put their recommendations forwards in February 2020 and the Council took until July 2020 to place the investigation on Y’s records.
65. The Council also provided evidence of the learning tool “Practice Fundamentals Tool” it produced on the back of Mr X’s complaint. This learning tool is evidence the Council has taken practical steps to try and address the way it operates.
66. The Council has taken the recommended action from the Stage 2 investigation. I do not find fault from the Council with this part of Mr X’s complaint.

Council Accommodations for ASD

67. Mr X complained the Council did not make accommodations for his ASD.
68. The investigator’s report outlined the Council failed to make accommodations for Mr X’s ASD. The investigator found the Council failed to pause or reschedule the meeting on 26 June 2019 when Mr X was upset by it.
69. Similarly, the Council failed to consider Mr X was waiting on a diagnosis of ASD within its Section 47 investigation. The Council made decisions about Mr X’s “Parenting Capacity” without considering his ASD. The Council said Mr X was “difficult to work with”, “hard to communicate and reason with” and “presents as irrational at times” while not making any accommodations for his ASD.
70. The failure to make any adjustments for Mr X’s ASD has, whether directly or indirectly, resulted in a misleading representation of Mr X’s parenting capacity during the Section 47 investigation. This is fault.
71. The Council apologised to Mr X on 20 February 2020 for the failure to make accommodations for his ASD. The Council should also provide training to its social workers about providing accommodations for people with disabilities that present social, communication and behavioural challenges.

Gendered Bias

72. Mr X complained the Council showed a gendered bias against him and favoured Mrs X during its investigation.
73. The investigator found fault with the Council for bias shown in favour of Mrs X. The investigator found the social workers appeared to put more weight on the domestic abuse by Mr X compared to that against him.
74. The Council’s investigation does not dismiss domestic abuse against Mr X. The Council discussed domestic abuse by Mrs X during the multidisciplinary meeting and was a point of consideration during the Council’s investigations.
75. However, the extent of this investigation was limited. The Council failed to get further information to consider Mr X’s accusations of abuse but instead put the weight of evidence on meetings with Mrs X.
76. The Council failed to make suitable attempts to observe Y with Mr X. The Council also omitted positive aspects of Mr X’s care with Y from its decision but included positive aspects of Mrs X’s care with Y.
77. While I acknowledge Mr X’s concerns about a gender bias, I do not have enough evidence to confirm a gendered nature to the bias. However, the bias in favour of Mrs X and against Mr X is evident. This is fault.
78. The Council’s introduction of the Practice Fundamentals Tool” is tangible evidence of the Council trying to improve the standards of its investigations. This tool does promote an evidence-based approach and completion of relevant consultations and checks with third party organisations.
79. However, the Council needs to provide training to its social workers over the important of carrying out balanced investigations and the importance of neutrality in assessments. The Council should make equal effort when making enquiries and completing observations for all guardians, and the Council should take an unbiased approach to reviewing information and forming conclusions.
80. The Council should also apologise for the bias shown towards Mrs X within its Section 47 investigation.

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Agreed actions

81. Within three months of the Ombudsman’s final decision the Council will:
• apologise to Mr X for the bias shown towards Mrs X within its Section 47 investigation.
• provide Mr X with a payment of £300 to recognise the distress caused through the restrictions placed on access to his daughter because of the Council’s actions.
• provide training to its social workers about providing accommodations for people with disabilities that present social, communication and behavioural challenges.
• provide training to its social workers over the importance of carrying out balanced investigations and enquiries, and the importance of neutrality in an assessment.

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Final decision

82. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman