Decision : Upheld
Decision date : 09 Dec 2020
The Ombudsman's final decision:
Summary: Miss Z complains about the Council’s handling of her complaint about what it did in response to reports of her being abused as a child. We have upheld elements of Miss Z’s complaint and recommended a larger financial remedy as well as service improvements. The Council accepts our recommendations, so we have completed our investigation.
- The complainant, whom I shall call Miss Z, complains about the Council’s handling of her complaint about children’s services’ actions in response to reports of her being sexually abused as a child in foster care.
- Specifically, Miss Z considers that:
- the Council failed to fully recognise and acknowledge the impact on her of the abuse and the failures to investigate and act on her reports; and
- the remedy offered by the Council does not adequately reflect the prolonged and enduring impact of the flaws on her.
The Ombudsman’s role and powers
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers.(Local Government Act 1974, section 25(7), as amended) In this Council, children’s services are provided by another organisation on behalf of the Council. We have therefore considered this as a complaint against the Council.
- 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)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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)
How I considered this complaint
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Council has considered Miss Z’s complaint under stages 1 and 2 of the statutory complaints procedure. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a council has investigated something under this procedure, we would not normally re-investigate it unless we considered the procedure was flawed. However, we may consider whether a council properly considered the findings and recommendations of the independent investigation.
- In this case, our investigation has looked at whether the Council has fulfilled the recommendations of the stage 2 investigation report and whether the remedy it has already offered Miss Z is suitable.
- I have not re-investigated the matters the stage 2 investigation has already investigated. This is because:
- I did not consider the stage 2 investigation was flawed and Miss Z accepted most of its findings; and
- the Council has accepted the stage 2 investigation report’s conclusions. The Ombudsman is unlikely to achieve more in terms of holding the Council to account by re-investigating the same issues.
What I found
- Miss Z was in the care of the Council since the age of 5. She says that while in foster care aged under 10, a foster carer became aware of sexual abuse by another, older child in the house. Miss Z says social workers were aware of this and that the foster carer did not believe her, and accepted the other child’s account instead.
- The Council did not investigate what had happened at the time or tell Miss Z’s adoptive parents about the reported abuse before they adopted Miss Z about a year later.
- When Miss Z was in her mid-teens, and living with her adoptive family, she was a patient in an adolescent mental health unit. She made a report to medical staff about being abused when in foster care. They reported this to her home council (Council X). Council X in turn reported this to the Council. Neither Council investigated the report at the time.
- Miss Z’s mental health worsened and she was detained in hospital under section 3 of the Mental Health Act. She did not feel able to discuss the details of her allegation with her adoptive parents, Mr and Mrs Z. But she did ask Mrs Z to follow up the investigation of her second report, which Mrs Z did through Council X and the hospital. Miss Z’s mental health continued to decline and her self-harm became worse. Her adoptive parents saw some of her suicide notes, which referred to being abused when younger.
- In 2019, Miss Z felt able to reveal more details of what had happened to her parents and they complained to the Council on her behalf. The complaint was about:
- failure to take appropriate action at the time abuse was first reported;
- not informing Mr and Mrs Z about what had happened when they adopted Miss Z;
- failure to take appropriate action when Miss Z made a further report of abuse as a teenager; and
- loss of records relevant to Miss Z’s foster care.
- at least one incident of a sexual nature had caused concern to the foster carer, who reported it to social workers;
- the Council did not take appropriate action when it became aware of the reports in 2008 and again in 2015;
- the Council should have informed Mr and Mrs Z of what happened when they adopted Miss Z but failed to do so. Having this information may have helped Mr and Mrs Z to more clearly understand the support Miss Z needed as a young child and later as an adolescent who began to experience severe mental health problems; and
- although the Council had recovered some records since Stage 1 of the complaint response, others were still missing. These documents were potentially material to finding out what the Council had done after the foster carers reported the incident in 2008 and it is a serious concern that they were missing.
- an apology for the mistakes identified in the report;
- informing Miss Z and her parents of lessons learnt from their complaint;
- acknowledging that the failure to establish at a much earlier time what happened during Miss Z’s foster placement may have contributed to the distress she has experienced;
- doing further work to find out what may or may not have happened after the foster carers’ report of 2008;
- reminding staff about their responsibility for clear and prompt recording and their duties under data protection laws;
- offering further support to Miss Z; and
- financial redress.
- £1,000 in recognition of prolonged distress caused by lack of appropriate support; and
- £1,000 for the significant risk of harm caused through failure to act on the reports.
My analysis – complaint handling
- Where a person asks for a Stage 3 panel hearing, the law says a council must arrange this (The Children Act 1989 Representations Procedure (England) Regulations 2006, Regulations 18 and 19). The associated guidance, Getting the Best from Complaints, says at Annex 3 that a council can refer a complaint direct to the Ombudsman without a Stage 3 panel hearing in limited circumstances. One of the key requirements is that the council and complainant agree on this course of action.
- In Miss Z’s case, the Council refused to arrange a Stage 3 panel. It told Miss Z her next step was to complain to the Ombudsman, rather than coming to an agreement with her and making an early referral to us on her behalf. This was contrary to the law and associated guidance, and therefore fault. However, I do not consider the fault caused Miss Z a significant injustice, because:
- the Stage 2 investigation report was robust and all her complaints were upheld at this stage;
- the restrictions in place because of COVID-19 are likely to have delayed a Stage 3 panel hearing; and
- the Ombudsman could investigate the complaint without significant delay.
My analysis – acknowledgment of impact
- In response to our enquiries, the Council has:
- reviewed its responses to Miss Z following the Stage 2 report and a detailed written statement Miss Z made about the impact on her of what happened; and
- offered to write to Miss Z with a more detailed letter of apology.
My analysis – remedy
- The Council has already accepted it was at fault because (in summary):
- it did not take appropriate action when it became aware of the reports of abuse in 2008 and again in 2015;
- it did not provide appropriate information to Mr and Mrs Z when they adopted Miss Z; and
- key documents from the period of the complaint are missing.
- what happened to Miss Z should never have happened;
- Miss Z suffered prolonged distress and significant risk of harm because the Council did not act on her reports of sexual abuse; and
- Miss Z had suffered risk of harm because the Council did not provide the correct support or enable her parents to provide the correct support specific to sexual abuse disclosures.
- The Ombudsman’s Guidance on good practice: Remedies makes the following relevant points:
- we take the individual circumstances of each complainant into account when recommending remedies;
- for injustice such as avoidable distress, harm or risk, the complainant usually cannot be put back in the position they would have been in but for the fault. Therefore, we usually recommend a symbolic amount of money to recognise the impact of the fault on the complainant;
- there must be a clear and direct link between the fault identified and the injustice to be remedied;
- “distress” can include uncertainty about how the outcome might have been, lost opportunity, outrage as well as undue significant stress, inconvenience and frustration;
- in cases where the distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional circumstances;
- where a complainant claims injury or harm to health as a main injustice, this is usually a matter for the courts to decide. But sometimes it is appropriate to acknowledge the impact of fault has included harm, or risk of harm. This can arise, for example, when the complainant did not receive services intended to provide protection because of fault by a council; and
- where the risk of harm was significant, or harm occurred, up to £1,500 may be justified but we may recommend more in exceptional circumstances.
- Miss Z has been extremely vulnerable from when the first report was made, at first because of her very young age and past experiences, and later because of her severe mental illness. Her vulnerability makes her more severely affected by distress and risk of harm than most people.
- Miss Z’s distress because of the deep sense of injustice over the Council’s failure to investigate was both severe and prolonged, lasting nearly 12 years. It was exacerbated when the Council failed to act on and investigate the further report she made to medical staff.
- My current view is that Miss Z also suffered outrage because of the Council’s repeated failure to act on and investigate the reports of abuse and the faults in record keeping.
- Miss Z also suffered uncertainty about whether an earlier investigation could have reached a definitive conclusion about what happened and could have led to appropriate support at an early age, which may have lessened her mental distress.
- Miss Z also suffered uncertainty about whether an earlier investigation could have prompted a police investigation into the actions of the alleged perpetrator.
- I consider it more likely than not that, had the Council shared what happened with Mr and Mrs Z when they were adopting Miss Z, they would have insisted the Council investigate the report of abuse, or complained about a lack of investigation, at the time. So, the Council’s failure to provide information to Miss Z’s parents led to the loss of opportunity for an earlier investigation, about a year after the original report. An investigation closer to the time of the original report had more of a chance of finding relevant evidence and/or providing a sense of closure to Miss Z.
- The Council’s failure to share information with Mr and Mrs Z when they were adopting Miss Z has also caused Miss Z significant risk of harm. This is because her parents did not know about some of what happened until about 2014, and more details until about 2019. As a result, her parents did not have the opportunity to support her and seek appropriate professional help over many years. Miss Z and her parents say that what happened also caused difficulties in her interaction with male adoptive family members. We do not know if sharing information with Mr and Mrs Z would have made a positive difference to Miss Z. However, this is a possibility. There was significant risk of harm to Miss Z because she lost out on the opportunity for more targeted support and increased understanding from her family, both of which could have helped her cope better.
- In reaching my conclusions, I have also had to consider whether we can say, on balance of probability, that the Council’s faults were the only or main cause of the mental health crises that Miss Z suffered as an older child and young adult. The available information, including her parents’ description of her suicide notes, indicates it is more likely than not that the distress resulting from the faults identified by the Stage 2 report contributed some harm to Miss Z’s mental and emotional state and family relationships over many years. However, I cannot say that the Council’s faults were the only or main cause.
Other recommendations from Stage 2 investigation
- The Stage 2 investigation recommended the Council did further work to establish what may have happened following the first report in 2008. The Council has done this by contacting another local authority (Council Y), which may have had records relating to what happened. Council Y has refused to provide any records to the Council, as they relate to third parties. The Ombudsman’s investigation cannot achieve anything more in this respect.
- The Council has done further work with Council X to facilitate Miss Z’s access to her adoption records. The Council has kept Miss Z informed about this. The Council has also referred Miss Z for adoption support services. Miss Z has also received some of her social care records, but is still waiting for records of what happened before she went into care. The Council has shown it is working to support Miss Z with accessing her records. The Council has agreed to continue doing this. The details are set out at the end of this statement.
- The Council has a project to recover and index case files previously considered missing. The Council is due to complete this in 18 months. There is no guarantee the Council will recover any of Miss Z’s missing records through this project, but this may happen. The Council has agreed to contact Miss Z with an update once the project is complete, or sooner if it finds any of her records.
- I am now satisfied that the actions the Council has agreed to take will ensure
Miss Z has access to as many of her records as can be retrieved.
- In its action plan following the Stage 2 investigation, the Council states it has a quality assurance framework in place to ensure case files are audited regularly. The Council has provided a copy of the framework. Having considered it, I am satisfied the Council is taking appropriate steps to ensure similar problems do not affect others.
- Within one month of our final decision, the Council will send Miss Z a detailed apology letter and a symbolic payment of £6,000 in recognition of the impact on her of the faults identified in the Stage 2 report.
- The Council will continue to support Miss Z with access to her records and ensure that within 6 months of the date of our final decision Miss Z has had access to all her social care records that are currently available. I have recommended an extended timeframe on this issue because the Council may need to arrange for Miss Z to receive some support in accessing her records and, due to the current circumstances, this may take longer than normal. However, the Council should aim to complete this action as soon as possible.
- The Council will also update Miss Z about its case record recovery project as soon as this recovers any of her records, and in any case within 18 months of the date of our final decision.
- Within three months of our final decision, the Council will review its approach to dealing with statutory children’s services complaints, ensure its approach is in accordance with the relevant law and guidance, and provide documentary evidence of this to the Ombudsman.
- We have upheld elements of Miss Z’s complaint about the Council’s children’s services. The Council has accepted our recommendations and we are satisfied with the actions it has agreed to take. We have therefore completed our investigation.
Investigator's decision on behalf of the Ombudsman