Cheshire East Council (21 004 831)

Category : Children's care services > Child protection

Decision : Upheld

Decision date : 14 Dec 2022

The Ombudsman's final decision:

Summary: Mr B complained about the actions of the Council in responding to his complaint about children’s services. We found some fault including a failure to appoint an advocate to assist Mr B with his complaint, failing to implement agreed reasonable adjustments for him and a failure to provide a personal remedy to Mr B and C to recognise the impact of the fault on them as part of the complaints process. The Council has agreed to pay £550 to Mr B, including £250 for the benefit of his daughter C, and to improve its procedures for the future.

The complaint

  1. Mr B complained that Cheshire East Council (the Council), in respect of his complaint about children’s services:
      1. omitted part of his complaint from the original stage two complaint statement: namely that a worker from a third party organisation saw his daughter alone, against his wishes and had no authority to do so;
      2. coerced Mr B into changing the wording of complaint one in the complaint statement: where it referred to drugs rather than cannabis, failed to give him support to read and check the statement of complaint and did not show him a copy of the final statement;
      3. omitted one of his complaints which he submitted: “that Cheshire East Council has failed to abide by its complaints procedure in terms of the timescale for responding to his complaints”;
      4. failed to properly investigate complaint four of his complaint, stating that there were no records to say why he could not see his daughter unsupervised when she went to stay with his sister. The Council was told there would have been a strategy meeting but no records of this have been produced;
      5. failed to fully investigate complaint five: it recognised that the Council had already apologised at stage one for not providing reports in time and promised to rectify it but then repeatedly failed to do so; and
      6. ridiculed his suggestion of helping him to start his own business without explanation or consideration.
  2. These failures caused him significant distress and time and trouble.

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What I have investigated

  1. I have investigated complaints a), b), c), d) and f).

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The Ombudsman’s role and powers

  1. 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)
  2. If we are satisfied with an organisation’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

  1. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  2. 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

Children’s Services complaints procedure

  1. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. 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 complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
  2. Stage one should be completed in a maximum of 20 working days, stage two in 65 working days and stage three within approximately 50 working days. In total 27 weeks.

Early referral to the Ombudsman

  1. The Ombudsman would normally expect a council and complainant to follow the full complaints procedure. The guidance sets out the circumstances in which a complaint can be referred to the Ombudsman without completing all three stages. This can only happen when the stage two investigation is robust with all complaints upheld. Councils must show they agree to meet most of the complainant’s desired outcomes and have a clear action plan for delivery.
  2. We published a guide for practitioners about the statutory complaints procedure in March 2021. This reiterated our expectation that complaints should progress through all three stages of the procedure. It said the decision about progressing the complaint lies with the complainant and not the council. Neither the regulations nor the guidance allow a council to refuse to progress a complaint because it believes there is no worthwhile outcome to be achieved.
  3. Certain bodies must attend if the local authority invites them to do so, including another local authority, and various health bodies. The Child Protection Conference decides what action is needed to safeguard the child. This may include recommending that the child should be subject to a Child Protection Plan.

Child protection

  1. 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 determine whether protective action is required (section 47 of the Children Act 1989). Significant harm covers the risk of physical, sexual, emotional abuse or neglect

Child protection conference

  1. If the information gathered by the enquiries substantiates the concerns that the child may remain at risk of significant harm, the social worker will arrange a child protection conference within 15 working days of the strategy meeting.

Reasonable adjustments for people with disabilities

  1. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any organisation which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
  2. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

  1. Mr B is the main carer of his teenage daughter C. He was abused as a child while in the care of the Council and as a result has severe learning difficulties which affect his ability to communicate, particularly to focus and organise his thoughts and to regulate his emotions when responding to difficult issues which trigger the trauma of his childhood.
  2. In May 2018 C’s school made a referral to the Council about possible neglect. The Council arranged a multi-agency strategy discussion where it was agreed the threshold of risk of significant harm was met and to commence child protection enquiries. Following the enquiries, a child protection conference was held in July 2018 and a child protection plan was put in place.
  3. During this period C, lived with Mr B’s sister and her husband, while support was put in place for Mr B and C to enable her to move back in with him. Social care completed a full assessment of Mr B. The documents refer to Mr B having supervised contact with C during the assessment period and by July 2018 C stayed overnight with him. By the time the assessment was complete, Mr B had moved to a new area nearer his sister and C and his relationship with C had improved. By October 2018 C was living with Mr B again and the case was stepped down to a child in need plan.
  4. A third party organisation (the Organisation) was acting on behalf of the Council to provide support to Mr B and C. Mr B was unhappy that despite his request to be present whenever C met with workers from the Organisation, a worker met with C alone. Mr B said this was not appropriate under a child in need plan.
  5. Following events in November 2018 and an email from Mr B to the Council in December 2018, the Council held a strategy discussion and concluded the threshold had been met to proceed with a child protection investigation. This led to a child protection conference in January 2019 and a child protection plan for C. During this period Mr B said that the Organisation had made an inappropriate comment to C. The Organisation denied they had said this. Mr B’s sister said C said she had overheard the Organisation saying this to Mr B. The Organisation also shared a danger statement with C just prior to the conference. Mr B said this was inappropriate and harmful to C’s wellbeing.
  6. Shortly before the review conference in March 2019 the Council discussed concerns C had made to the social worker about her relationship with her mum’s partner. No further action was taken. The conference agreed to keep the child protection plan in place for another six months.

Complaint – stage one

  1. In April 2019 Mr B complained to the Council about inhumane treatment by the Council. He said he had been caused emotional distress because the organisation had given inappropriate information to C, the Council had made data breaches, and was ignoring domestic abuse involving C’s mother. He requested a meeting to discuss his concerns.
  2. In June 2019 the Council replied at stage one of its complaints procedure. It upheld the complaint. It said it had failed to take his learning needs into account. In future it would provide reports at least three days in advance of meetings and use yellow paper. It advised him to complain directly to the Organisation about his concerns but agreed that the danger statement produced by the Organisation should have been shared and discussed with Mr B first. It explained why other family members had been involved in the child protection process and agreed to explore the allegation of domestic abuse and any potential impact on C.

Complaint - stage two

  1. In September 2019 Mr B said he wanted to escalate his complaint to stage two. The Council wanted more detail about the reasons why. In November 2019 Mr provided further details. The Council commissioned an Investigating Officer (IO) and an Independent Person (IP) in December 2019. The IO met Mr B on two occasions in January and February 2020 to discuss his complaint. The IO sent their typed notes to Mr B in March 2020 and gave him four weeks to respond. Mr B sent a response in April 2020 adding further complaints, including the complaint that the Organisation visited C at school without Mr B’s permission. He also included a lot of detail about his view that his human rights had been breached.
  2. The Council’s complaints officer asked Mr B to agree the proposed statement of complaint by 30 April 2020. The officer explained that the IO could not investigate breaches of the Human Rights Act and if Mr B could not accept the remit of the investigation, the Council would end the process. Mr B sent some further emails expressing distress at the Council’s approach and the BinJ said it would refer Mr B to the Ombudsman.
  3. On 15 May 2020 the Council’s complaints officer sent a draft statement containing five complaints. Mr B sent an email to the complaints officer saying: ‘…all the complaints are generally correct’ and he provided more context to the first complaint about the danger statement.
  4. At the end of June 2020 Mr B provide detailed comments on the statement of complaint. He wanted a reference to drugs to be replaced with cannabis and he said it was wrong to discuss financial information with C. He said the Council was demonising his parenting style but ignoring C’s mother’s neglect and the domestic abuse in her relationship. He said the Council never explained why he could not have unsupervised contact with C while she stayed with his sister, and this was against the court order. He said the Council had repeatedly failed to make reasonable adjustments to enable him to understand the meetings and processes.
  5. On 1 July 2020 the Council confirmed the complaints in Mr B’s own words and sent them to the IO and IP so the investigation could start. The IO gained C’s consent to the investigation and interviewed officers in August 2020. They completed the investigation report in September 2020. The IO:
    • upheld the complaint about the original danger statement written by the Organisation. They said it was exaggerated, lacked substantive evidence, appeared to pre-judge the family with little evidence of a working relationship and that consequently the statement was emotionally abusive.
    • partially upheld the complaint that the Council focussed on criticising Mr B rather than supporting him but said there was no evidence to support Mr B’s view that the Council was overly judgemental about his home conditions. This complaint included the alleged inappropriate statement the Organisation made to Mr B/was overheard by C. The IO was unable to make a conclusive finding on this point.
    • upheld the complaint about the Council ignoring the domestic and emotional abuse C had witnessed when with her mother. The IO said the Council paid too little attention to the risks involved from C having contact with her mother and partner: there was no risk assessment and interventions were not pro-active or inquiring. The Council failed to holistically look at the issues and failed to take time to listen to C and explore her issues and feelings.
    • did not make a finding in respect of the reasons why Mr B could not have unsupervised contact with C while she stayed with Mr B’s sister, because the IO did not see any records relating to this event and the relevant officers could not be interviewed. However, the IO said the Council would have had a duty to take immediate action to ensure that C was not at further risk, and it would have been best practice to have allowed C to stay with a family member rather than an emergency foster placement. They said that if the Council did not give Mr B a reason why he could not have unsupervised contact that would indicate a failure to work in partnership with him at that time.
    • upheld the complaint that the Council failed to provide paperwork in an accessible format at least three days before meetings. They concluded it was a failure to uphold equality legislation and that Mr B had been disadvantaged by this and was not able to positively contribute to meetings about C, leaving him feeling frustrated.
    • did not uphold a complaint about lack of assistance with arranging benefits.
  6. The IO recommended the Council should acknowledge its failings, apologise to Mr B and C and offer Mr B a conference call or video meeting with a senior manager. The IO also said the Council should consider providing parents with clear written information about child protection procedures and the possible steps required to immediately safeguard a child in the event a child protection investigation commenced.
  7. In October 2020 Mr B requested a stage three review panel He remained unhappy about the danger statement and the comments about his home. He felt staff had avoided accountability and the apology was lame. He sent a further email saying he wanted his rights and freedoms restored and help with starting a business. He said it was institutional abuse.
  8. The Council replied saying it was not sure what restoration of his rights and freedoms meant and said it was unlikely that a stage three review panel could achieve that. It said the complaint about the danger statement had been fully upheld, there was nothing more a panel could do. The Council suggested Mr B should obtain some help in formulating his reasons for requesting stage three.
  9. After a further exchange of emails, the Council agreed to start stage three. Mr B disagreed with the statement of complaint and sent an angry email. He then apologised and asked the Council to help him find an advocate.
  10. The Council provided details of an organisation and Mr B sought help. In January 2021 he said he wanted to approach the Ombudsman and complained to us in March 2022 with the help of a peer advocate.
  11. In response to my enquiries the Council accepted that with hindsight, it would have been helpful to have found an advocate sooner to assist Mr B with the complaint process. It also said it would be willing to consider a time and trouble payment to Mr B in recognition of the upheld complaints and the time it took to complete the complaints procedure.

Analysis

omitted part of his complaint from the original stage two complaint statement: namely that a worker from a third party organisation saw his daughter alone, against his wishes and had no authority to do so

  1. The IO interviewed Mr B on two occasions regarding his complaints, sent him a copy of their written notes of the meeting and the Council through the complaints officer allowed him a further three months to confirm the statement of complaint. The wording of the complaints has been taken directly from Mr B’s emails to the complaints officer. I can see Mr B in March 2020 included the issue of his daughter being visited without his consent, but nether Council nor Mr B included this in later drafts.
  2. Although I consider Mr B had adequate opportunity to amend the statement and include all the complaints he wished to, I agree with the Council that appointing an advocate at an earlier stage would have greatly improved Mr B’s ability to participate in the process more effectively.
  3. More generally in terms of its duty under the Equalities Act 2010 the Council failed to anticipate Mr B’s communication difficulties when he tried to complain about his treatment. It failed to consider the unique impact of his history of abuse as a looked after child, how this might impact on his ability to deal with the complaint and how the Council might need to make reasonable adjustments (such as appointing an advocate) to help him navigate the process. This was fault.

coerced Mr B into changing the wording of complaint one in the complaint statement: where it referred to drugs rather than cannabis, failed to give him support to read and check the statement of complaint and did not show him a copy of the final statement

  1. I have concluded the IO and the complaints officer made significant efforts to fully understand Mr B’s complaints and give him extra time to ensure he agreed with the statement. Mr B made comments on the use of the word drugs rather than cannabis. The IO considered this as part of the stage two investigation and upheld this aspect of the danger statement being unsubstantiated in their conclusions.
  2. Again, I agree with the Council that appointing an advocate for Mr B would have been beneficial to the complaints process and is likely to have improved Mr B’s faith in it. The failure to do this sooner was fault.
  3. I also consider the complaint may have successfully completed stage three of the process with the input of an advocate. The requirements for early referral had not been met in their entirety and the main reason cited by the Council was that the panel could not achieve his desired outcomes. With the help of an advocate, it is likely Mr B’s outcomes could have been better expressed and addressed by the Panel. As I have concluded below the lack of a personal remedy was an omission at stage two.

omitted one of his complaints which he submitted: “that Cheshire East Council has failed to abide by its complaints procedure in terms of the timescale for responding to his complaints”

  1. I have not found evidence of when Mr B submitted this as a complaint. It was not listed in the statement he approved in July 2020.
  2. I agree the Council delayed in responding to his stage one complaint: the statutory timescale requires the Council to send a response within 20 working days (four weeks). The Council took almost eight weeks. This was fault.

failed to properly investigate complaint four of his complaint, stating that there were no records to say why he could not see his daughter unsupervised when she went to stay with his sister. The Council was told there would have been a strategy meeting but no records of this have been produced

  1. The case records (from a different area) show that strategy discussions were held in May and June 2018 following the referral. A safety plan was formed to protect C from immediate risk and she went to live with her aunt and her aunt’s partner. The records show Mr B was in agreement with this. The Council recognised that Mr B wanted C to return to living with him, but Mr B needed to engage with services and the risk to C needed to be managed by a child protection plan. The notes say that contact was to be supported. There is no evidence that Mr B disagreed with this or queried ongoing contact. But equally there is no evidence that the Council explained this to him.
  2. I agree with the IO’s recommendation that the Council should consider providing parents with clear information about child protection procedures and welcome the Council’s commitment in October 2020 to develop such guidance.

failed to fully investigate complaint five: it recognised that the Council had already apologised at stage one for not providing reports in time and promised to rectify it but then repeatedly failed to do so

  1. I have not investigated this complaint because it was fully upheld by the IO and accepted by the Council. However, I do think Mr B needs some reassurance of what steps the Council has taken to ensure these reasonable adjustments are done in the future. I also consider the Council could look at improving its processes for identifying reasonable adjustments to all disabled parents interacting with children’s services and the complaints process.

ridiculed his suggestion of helping him to start his own business without explanation or consideration.

  1. I do not agree that the Council ridiculed his request for help in starting his own business; it rather said that this was not an achievable outcome under the statutory complaints process.
  2. Again, I consider an advocate could have helped Mr B better understand the remit of the statutory complaints process and the likely remedies he could expect. But I would also comment that given the significant fault found by stage two of the complaints process and the injustice to C and Mr B, it would have been appropriate to have offered a remedy for that injustice beyond an apology and a meeting.

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Agreed action

  1. I recommended the Council within one month of the date of my final decision:
    • pays Mr B £550 (£300 for his distress and time and trouble in pursuing a complaint to us and £250 for the benefit of C, for the distress caused by the danger statement and the failure to holistically explore her case);
    • explains what progress it has made with guidance for parents about the child protection process; and
    • explains what steps it has taken to ensure Mr B’s reasonable adjustments are met in the future.
  2. I also recommended that the Council, within three months:
    • works with Mr B’s advocate to consider what steps it could take to improve its response to disabled (particularly neurodivergent) parents interacting with both children’s services and the complaints process; and
    • reviews its guidance for complaints staff in when and how to appoint advocates for complainants.
  3. The Council has agreed to my recommendations and will provide evidence of their implementation.

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Final decision

  1. I consider this is a proportionate way of putting right the injustice caused to Mr B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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