Summary: Ms F complained the Council failed to protect her from harm and remove her from her parents’ care between 2014 and 2019, despite various referrals and social worker involvement. The Council investigated Ms F’s complaints appropriately through the statutory children’s complaints procedure. It found the social worker’s decisions were ones of professional judgement and there was no evidence which indicated the Council believed a care order was necessary. However, the Council missed opportunities to provide help and support to Ms F during this period and there is lack of clarity around decisions to step down support and close referrals. The Council agreed to apologise to Ms F and pay her a symbolic payment of £1,000 to acknowledge the uncertainty this caused her.

The complaint

1. Ms F is a child and complains the Council failed to protect her from harm and remove her from her parents’ care between 2014 and 2019, despite various referrals and social worker involvement. Ms F is unhappy with the outcome of her complaint which the Council investigated under the statutory children’s complaints procedure.
2. Ms F says the Council was negligent and should have acted sooner to take her into care. She says these failures caused her avoidable harm.

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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 there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. 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)
7. 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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How I considered this complaint

8. I spoke to Ms F and her representative, Ms B, about her complaint and considered information she provided.
9. I considered the Council’s response to my enquiry letter and the outcome of its investigation under the statutory children’s complaints procedure.
10. I considered relevant case law including AB v Worcestershire County Council and another [2022] EWHC 115 (QB), [2022] All ER (D) 76 (Jan).
11. Ms F and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Statutory children’s complaints procedure

12. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
13. The first stage of the procedure is local resolution.
14. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation.
15. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel.
16. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Child protection

17. 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. (Children Act 1989, section 47)
18. Anyone who has concerns about a child’s welfare should make a referral to children’s social care and should do so immediately if there is a concern that the child is suffering significant harm or is likely to do so.
19. The council should make initial enquiries of agencies involved with the child and family, for example, health visitor, 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 assessment 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 meeting.

20. 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”.
21. If the information gathered under section 47 supports concerns and the child may remain at risk of significant harm the social worker will arrange an initial child protection conference (ICPC). The ICPC decides what action is needed to safeguard the child. This might include making the child a ‘child in need’ (CiN) and implementing a safety plan.

Child in Need Plan

22. When a council assesses a child as being in need, it supports them through a child in need plan. This should set clear, measurable outcomes for the child and expectations for their parent. Councils should review child in need plans regularly.

Early help services

23. Early help (or early intervention) is support given to a family when a problem first emerges. Early help services can be delivered to parents, children or whole families, but their main focus is to improve outcomes for children. Early help is voluntary and families do not have to participate if they do not want to. Examples of early help services include:
• Parenting support
• Emotional health and wellbeing support
• Referrals to relevant agencies

AB v Worcestershire County Council and another [2022] EWHC 115 (QB), [2022] All ER (D) 76 (Jan)

24. In this case the claimant alleged that he was abused and neglected while in the care of his mother. He was the subject of an interim care order in May 2015, followed by a final care order in January 2016. The claimant asserted the two councils involved should have applied for a care order earlier and not doing so breached his Human Rights. The claimant presented various evidence which he asserted amounted to neglect.
25. The Court however said there is no realistic prospect of the claimant establishing that he was subject to ill-treatment which falls within the scope of Article 3 of the Human Rights Act 1998 (freedom from torture and inhuman or degrading treatment). The claimant was undoubtedly vulnerable and at risk. He was at risk of being subjected to poor and inconsistent parenting and neglect. However, the Court said there was no realistic prospect of the claimant establishing there was a ‘real and immediate’ risk of treatment falling within the scope of Article 3. Nor was there a realistic prospect of establishing the councils knew or ought to have know of the existence of a ‘real and immediate’ risk of Article 3 treatment. There was also no realistic prospect of AB establishing that any particular aspects of the disorderly and unstable family situation should have led the social services to conclude that a care order was required.
26. It is now established law that the mere fact that various steps are taken by councils in the discharge of its child protection functions is not enough to give rise to an assumption of responsibility. 

Young carer assessment

27. A young carer is a person under 18 who regularly provides emotional and/or practical support and assistance for a family member who is disabled, physically or mentally unwell or who misuses substances.
28. The Children Act places a duty on councils to assess whether a young carer in their area needs support and what those needs are if: 
• it appears to the council that a young carer may have need for support;
• the council receives a request from a young carer or a parent of a young carer to assess the young carer’s need for support; or
• an assessment has been carried out, but the circumstances of the young person or person being cared for have changed.
29. There should be a written record of the assessment detailing whether the council thinks support is required and whether it will give it to the young person.

What happened

Background

30. Prior to being born, Ms F was put on the Child Protection Register due to concerns about her mother and father, Mrs X and Mr Y. The concerns were around Mrs X missing appointments and substance misuse. Following Ms F’s birth, the Council carried out assessments and decided to step down support. Between 2006 and 2010 the Council provided low level support to the family around, concerns about Ms F’s presentation and lack of adequate care from Mrs X and Mr Y. Ms F started school in September 2010 and no further contact or concerns are recorded until 2014.
31. In 2014 Ms F still lived with Mrs X and Mr Y. Between 2014 and August 2016 the Council received eight referrals from various sources raising concerns about Ms F and her home situation. This concerns included:
• Mrs X and Mr Y not adequately caring for Ms F.
• Mrs X and Mr Y experiencing ill health.
• Ms F was identified as a young carer for Mrs X and Mr Y.
• Substance and alcohol misuse including an allegation that Mrs X and Mr Y had given Ms F.
• An allegation of sexual abuse by Mr X against Ms F.
• Family debt.
• The home being in a poor state of repair with the family sleeping on the ground floor in the same room.
• Poor school attendance from Ms F.
32. Following the referrals, the Council carried out social work assessments and put in place Early Help plans. Due to the seriousness of some of referrals the Council carried out joint investigations with the police and placed Ms F on a child in need plan. In 2016 the Council placed Ms F on a Child Protection Plan under the category of neglect. The Council recorded many things improved and records show it closed Early Help plans.
33. The Council received a further two referrals in late 2016. The second one was after Mr Y was found dead at home. Ms F remained on a child protection plan.
34. Following Mr Y’s death, Mrs X started engaging with social care and other agencies.
35. The Council received three further referrals between July and September 2018 of a safeguarding nature. These related to Ms F being exposed to domestic abuse and Mrs X letting various people visit the home who refused to leave. Another referral was around concerns that drug paraphernalia was found in the family home. The Council carried out a social work assessment and an Early Help plan was again put in place. The Council said Mrs X initially engaged with support but then reverted back to alcohol and drug misuse and stopped engaging with support.
36. In 2019 Mrs X died. Ms F was placed with her maternal grandparents in the short term; however, she was then made subject of an interim care order and placed with foster carers in mid-2019.

Ms F’s complaint

37. In 2021 Ms F complained that between 2014 and 2019, the Council was negligent and failed to protect her from significant harm. Ms F said the Council should have taken her into care much sooner. Ms F said the Council’s negligence meant she suffered neglect and the trauma of being exposed to her parent’s drug and alcohol misuse and their subsequent deaths. Ms F said the Council failed to take effective action following referrals.
38. The Council investigated Ms F’s complaint at stage 2 of the statutory children’s complaints procedure and appointed an investigating officer (IO) and an independent person to carry out the investigation.
39. The IO completed the stage 2 investigation report in August 2021. The stage 2 noted the Council received 13 referrals between 2014 and 2019 from various sources. The principal concerns were around whether Ms F was being adequately cared for, the poor health of Mrs X and Mr Y and changes in Mr Y’s behaviour. The stage 2 said the records demonstrated social workers and staff followed the correct procedures and carried out assessments. It said decisions to reduce levels of support and close cases were a matter of professional judgement. It found social care records demonstrated the identified risks to Ms F could be managed thorough a child protection plan and professional meetings. It found no evidence or information which indicated the Council considered or thought a care order was necessary.
40. However, the stage 2 investigation found the social work assessments included contradictory comments and failed to quantify some of the concerns. They also appeared to minimise Ms F’s absences from school. The IO recorded there was evidence to show Mrs X and Mr Y failed to engage at times with social care and this lack of engagement was not adequately represented in the records. The IO found no evidence showing any action was taken to overcome this. The IO said the records did not assess whether a failure to engage impacted on the risk to Ms F.
41. The stage 2 investigation did not uphold Ms F’s complaints and said the Council was not negligent. It did however suggest a small financial payment of compensation. The stage 2 adjudication letter agreed with the IO’s findings and recognised the experiences had a significant impact on Ms F. The adjudicating officer decided not to offer Ms F a payment but instead said it would speak to Ms F’s social worker to see if some practical support could be put in place.
42. Ms F was unhappy with the outcome at stage 2 and in October 2021 asked to escalate her complaint for consideration by a stage 3 panel. She disagreed that she did not suffer significant harm and said the stage 2 report highlighted negligence. She was unhappy the IO would not come to a finding on some of the Council’s decisions because they were deemed to be ‘professional judgement’. She said the IO had also failed to consider Team Around the Child (TAC) reports which showed actions were not followed through.
43. The Council held the stage 3 panel review in November 2021. The panel supported the conclusions of the stage 2 investigation and said the quality of the social work judgement was a matter of professional scrutiny. The panel said only a professional could determine the psychological effect on Ms F. The panel was satisfied the stage 2 investigation was comprehensive and fair and found no evidence of shortcomings to doubt the findings.
44. Ms F remained unhappy and complained to us. Her main points of complaint were:
• the Council was negligent in not taking her into care earlier.
• it did not act upon all 13 referrals between 2014 and 2019.
• social workers failed to follow up with her parents around their failure to engage with Early Help and other tasks.
• the Council failed to take action around her persistent absence from school.
• the stage 2 investigator failed to consider TAC reports.

My Findings

45. We do not re-investigate complaints which have been through the statutory children’s complaints procedure unless we consider the investigation was flawed. The Council appropriately considered Ms F’s complaint at all three stages of the process. I have reviewed the stage 2 investigation and the findings at each stage. I am satisfied the stage 2 investigation was robust, thorough and considered all the relevant documents. But even though the investigation itself is not fundamentally flawed, I disagree with some of the investigator’s and the Council’s conclusions.
46. Ms F’s substantive complaint is that the Council was negligent in not taking her into care earlier. The stage 2 investigation found no evidence that thresholds were met to consider care proceedings. Although there was significant social care involvement between 2014 and 2019 the decisions taken at the time were to manage concerns with assessments, plans and Early Help. Only a court can decide on cases of negligence. Case law as referenced above essentially established there was no realistic prospect of establishing that councils knew or ought to have known the existence of ‘real and immediate’ risk which should have led to the conclusion that a care order was required. With all of this in mind, there is nothing further I can add to the conclusions of the stage 2 investigation which would lead to a different outcome.
47. The Council received 13 referrals between 2014 and 2019 and the records show it took appropriate steps following each referral which resulted in various outcomes such as Early Help, TAC meetings, social work assessments and Ms F being subject to a child in need or child protection plan. Social worker decisions and conclusions are a matter of professional judgement. However, the stage 2 investigation found social work assessments failed to accurately capture and record the whole picture. It said later assessments contained copy and pasted sections from earlier ones. The stage 2 investigation referred to failures to follow up on various referrals for Ms F including CAMHS and other agencies.
48. The records also failed to accurately record reasons and decisions around the closure of cases which contained conflicting information. For example, the Council closed the Early Help plan in 2015 because it believed the family had made sufficient progress. However, the closure record stated outcomes were not achieved, parents declined TAC and also cancelled various meetings and help from agencies. It also said Mr Y was drinking and resistant to professional engagement.
49. A social work assessment in July 2018 referred to concerns from the school about poor attendance. However, the social work closed the case due to a lack of engagement. There is no further detail on the closure or any subsequent action taken around Ms F’s school attendance. Ms F’s school attendance was generally poor between 2014 and 2019 before the care order and there was no evidence of substantive action taken by the Council to improve it during this period. This was fault. The Council said however that following the care order Ms F started engaging with a virtual school and her attendance became much more consistent.
50. A further example from a social work assessment in 2018 recorded concerns continued around Mrs X’s ability to meet Ms F’s needs and safeguard her. It recorded Mrs X had not responded to the social worker’s attempts to contact. Yet, the social worker closed the case stating there was ‘no identified role for social care’. There is no detail outlining this conclusion which is contradictory to the concerns outlined within the assessment. This was fault.
51. The stage 2 investigation and the records refer to the Council identifying Ms F as a young carer. There is evidence the Council made referrals to an external agency prior to 2016 who offered Ms F 1:1 support and some adult social care was offered. However, after 2016 there is no evidence, the Council reviewed Ms F’s status as a young carer. There is no evidence the Council carried out any further assessments with Ms F to determine what level of support was appropriate. This was fault.
52. The stage 2 investigation recognised the faults identified above but stopped short of finding fault. It states there was a cycle of referral, early help and closure. I do not question the decisions themselves which were professional judgements, based on information available at the time. However, the faults identified above show missed opportunities to step in and provide further help for Ms F when it was clear Mrs X and Mr Y consistently failed to engage with social workers, Ms F’s school and external agencies. The decisions were matters of professional judgement. However, the lack of transparent detail and conflicting information in the Council’s decision-making leaves Ms F with uncertainty around how some of these judgements were made and whether circumstances could have been different.
53. Despite not upholding Ms F’s complaint the Council said it made various service improvements, informed by the findings of the complaint. This includes improving case supervision and case recording, developing its Children’s Rights Advocacy Service and putting in place a new specialist adolescent intervention team. Additionally, the Council has put in place a specialist multi-disciplinary team to work with complex and high-risk families. Since Ms F’s complaint the Council said its Ofsted rating has risen from ‘adequate’ to ‘Outstanding’.
54. The circumstances in which Ms F lived between 2014 and 2019 were clearly distressing. There were missed opportunities to do more to help Ms F and there is lack of clarity around some of the decision making which has caused her uncertainty. I cannot say however, even on balance that without these faults the Council should or would have started care proceedings.

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Agreed action

55. The Council agreed to apologise to Ms F and pay her a symbolic payment of £1,000 to recognise the uncertainty caused to her by the missed opportunities to provide her with support and a lack of clarity around decision making following various social care and safeguarding referrals between 2014 and 2019.

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Final decision

56. I completed my investigation. I found fault and the Council agreed to my recommendation to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman