Decision : Upheld
Decision date : 19 Jan 2022
The Ombudsman's final decision:
Summary: Mr X complains the Council did not deal properly with safeguarding concerns about his children. The Council was at fault because it wrongly stated it had discussed issues with his son’s school and delayed fully investigating Mr X’s concerns. The Council has already apologised to Mr X, offered to pay him £100 and provided guidance to staff. The Council should pay Mr X an additional £200 for distress and provide guidance to staff to fully record decisions and actions.
- The complainant, whom I shall refer to as Mr X, complains the Council did not properly provide services for his children because:
- It did not investigate safeguarding concerns made since September 2019 properly and has not fully informed him of the outcomes;
- It wrongly said he had refused to take his son for a medical check;
- It wrongly took his son out of his care for a medical check in September 2019 and then returned him to his mother;
- It has completed a Child and Family Assessment in October 2019 which is inaccurate and has not been corrected; and
- It threatened to take his children into child protection if he didn’t consent to a Child in Need Assessment;
- It wrongly said it had consulted his son’s school about his behaviour;
- It has not handled his complaint properly because there have been long delays.
The Ombudsman’s role and powers
- 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)
- 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)
- We cannot question whether a council’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)
- 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.
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
- I spoke to Mr X and considered the details of his complaint as well as the Council’s response. I reviewed documents sent by the Council and Mr X.
- Mr X and the Council had an opportunity to comment on my draft decision. I will consider any comments received before making a final decision.
What I found
- Section 17 of the Children Act 1989 states that it is the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need; and so far as it is consistent with that duty, to promote the upbringing of such children by their families.
- Section 47 of the Act places a duty on councils to make safeguarding enquiries when they suspect a child who lives, or is found, in their area is at risk of significant harm. These are routinely referred to as ‘section 47 enquiries’.
- This 2018 document (which I refer to as ‘Working Together’) sets out statutory guidance to councils and other professionals on how they should meet their child safeguarding duties under the Children Acts of 1989 and 2004.
- After receiving a referral about a child’s welfare, a council should decide on the next course of action, and feed back to the referrer, within one working day. If a council has reasonable cause to suspect a child is at risk of significant harm, it should hold a multi-agency strategy discussion to decide whether to make section 47 enquiries.
The London child protection procedures
- These procedures set out how London councils, including Brent, meet their child safeguarding duties. Part A, Core Procedures state:
- The strategy meeting will determine, in consultation with the paediatrician, the need and timing for a paediatric assessment. (para 3.10.2)
- A child of sufficient age and understanding or a person with parental responsibility may give consent to a paediatric assessment. (para 3.10.7)
- Wherever possible the permission of a parent should be sought for children under sixteen prior to any paediatric assessment and / or other medical treatment. (para 3.10.12)
- In non-emergency situations, when parental permission is not obtained, the social worker and manager must consider whether it is in the child's best interests to seek a court order. (para 3.10.15)
Dealing with complaints about safeguarding children
- The statutory children’s complaints procedure covers complaints about councils’ actions under Part 3 and some of Parts 4 and 5 of the Children Act 1989, as well as some adoption and special guardianship services. The LGSCO’s guide to dealing with children’s statutory complaints published March 2021 says Child protection including s47 enquiries and conferences are generally exempt from the statutory complaints process.
- The Council’s corporate complaint procedure sets the following timescales for a response at Stage 1 and Stage 2.
- At stage 1, the Council will send a written response within 20 working days.
- At stage 2, the Council will provide a full response within 30 working days.
- In September 2019, Mr X reported concerns about his son to the police. He was worried his son’s mother had caused him physical harm. Mr X and his son's mother do not live together. Mr X did not to return his son to his mother after the weekend visit, because of his concerns. The police made a referral to the Council. The Council visited Mr X and his son the same day.
- The Council completed a single agency s47 enquiry. It decided his son should undergo a medical examination and contacted the NHS. On 11 September, the first day the NHS could offer an appointment, the Council asked Mr X to take his son to the medical examination later that day. When Mr X said he was unable to take him due to other commitments, the Council asked his son’s mother and his son was taken out of school for the examination. The Council says it recalls during a telephone call Mr X agreed if a medical examination showed no harm, he was happy for his son to return to his mother. Mr X denies saying this. The Council has no notes of this call.
- After the medical examination, the Council returned his son and his sibling to their mother’s care. Mr X says as a result of this, he had to spend several months and a lot of money in private law proceeding so he could see his children again.
- The s47 enquiry did not substantiate Mr X’s concerns.
- On 19 September, Mr X asked the Council for a copy of the medical report.
- In October 2019, Mr X complained there were problems with the way the medical examination was undertaken, and that information was wrong.
- The Council completed the child and family assessment, and recommended his son should be supported under a child in need plan. A child in need plan describes the developmental needs of a child following an assessment and sets out any services required to support the child.
- The Council met with Mr X to discuss his concerns. Mr X provided an audio recording made in 2018 which he said contained evidence of his son’s mother swearing at his son in her native language. He also reported that his son’s younger sibling had reported the childminder had used physical chastisement on his son. The Council agreed to translate the audio recording and assess it. The Council decided that the audio recording did not raise significant safeguarding concerns.
- The Council responded to Mr X’s complaint. Mr X disagreed with the accuracy of the Council’s response and asked for his complaint to be escalated.
- In early November 2019, the Council again met with Mr X to discuss his concerns. Mr X continued to dispute the accuracy of information recorded by the Council.
- In December 2019, the Council sent Mr X a final complaint response. It said there were no records of its conversations with Mr X. It agreed it did not take the right action after his son’s medical examination as it should have suggested to both parents they needed to discuss where the children should live. The Council agreed to obtain a further translation of the audio recording and review Mr X’s concerns about it again. It agreed to put his disagreement about the contents of the October 2019 child and family assessment on file.
- In February 2020, the Council observed the childminder’s interactions with his son and had no concerns.
- The second translation was obtained by the Council in July 2020. his son’s case notes show that after the audio transcripts were reviewed by the Council, it did not conclude there were any significant safeguarding concerns. The Council discussed strategies to manage his son’s behaviours with his mother
- In August 2020, Mr X made a second complaint that the Council had delayed and avoided investigating his concerns.
- The Council responded to Mr X’s complaint in September 2020. It accepted there were delays in obtaining the second translation and apologised. It said that Issues arising from the translation had been addressed.
- Mr X remained unhappy about how the Council has investigated his concerns. He asked for incorrect information to be corrected. The Council sent Mr X a final response to his second complaint in October 2020. It again accepted delays in getting the second translation. The Council apologised, offered to pay Mr X £100 said it would provide guidance to its staff.
- Mr X raised concerns about the actions of his son’s mother in 2019.
- Mr X says a Council worker attempted to stop an investigation by saying he had withdrawn his concerns. The Council says there is no evidence they asked Mr X to withdraw his concerns. The two staff members involved no longer work for the Council. However, a medical check was carried out on his son. This is evidence that the Council looked into Mr X’s concerns. It followed the correct procedure by gathering information from the parents, the school, a medical examination, and by its own assessment during a meeting with the child. It followed the correct process and therefore we cannot criticise its decision the children were not at risk of significant harm.
- Mr X raised a second set of concerns in October 2019 about an audio recording of his son’s mother from 2018, and about an allegation his son’s childminder had hit his son. After Mr X was unhappy with a translation of the 2018 audio recording, which he gave the Council in 2019, the Council agreed to obtain a second translation. It took from December 2019 to June 2020 to provide this. The Council has already accepted this was fault, apologised and offered to pay Mr X £100. This is a suitable remedy for the frustration caused to Mr X by the delay in obtaining this translation. However, as the translation did not cause the Council to have safeguarding concerns about his son, and Mr X could translate what was said in the recoding, the delay did not cause any additional injustice to Mr X or his son.
- Mr X first raised his concerns about a childminder in Oct 2019. In its stage two complaint response the Council agreed to investigate these concerns further. The Council completed its assessment of these concerns in February 2020. There was therefore a four month delay in investigating Mr X’s concerns. This delay was fault by the Council. The delay caused distress to Mr X. Mr X did not suffer any further injustice as a result because no significant safeguarding concerns were found.
- The Council has since considered all the relevant evidence when deciding on what action was appropriate following Mr X’s additional concerns, raised in October 2019. If it had not been for the delay in the translation, I am satisfied the Council would have come to the same decision. As it considered relevant matters, there was no further fault by the Council.
- Mr X says, “the council deliberately and intentionally delayed and avoided investigating the concerns raised to influence the outcome of a [private] court case [between Mr X and his son’s mother regarding where their children should live] and mislead professionals.” I have seen no evidence to show delays were deliberate and intentional or for the reason put forward by Mr X. There was no fault by the Council. We cannot comment on Mr X’s allegation of the Council’s failure to disclose documents to the court because it was part of proceedings in court.
- The Child and Family Assessment (CFA) record shows the Council held a strategy discussion about Mr X concerns and completed a s47 enquiry. Mr X consistently says he did not refuse to consent to a medical examination of his son. The Council agrees there are no records of conversations with Mr X about this. The Council accepts that Mr X did not refuse consent for a medical assessment of his son and that the only issue was his availability on the specific date.
- The London child protection procedures require a person with parental responsibility to give consent for a medical examination. Where there are two parents, it does not require both to give consent. When Mr X was unavailable, the Council then sought consent from his son’s mother. As she holds parental responsibility for his son along with Mr X, this was not fault by the Council.
- The CFA record provided by the Council does not include any rationale relating to the the need, timing or consent for a medical assessment of his son in 2019. The Council says the need is obvious after an allegation of physical harm and time was of the essence when arranging a medical assessment of his son due to when the concern was received and the elapsed time. The Council says it made a referral for a medical report the next day and the medical occurred a couple of days later, based on the availability of the paediatrician, so this was out of the Council’s control. This is an appropriate response and there was no fault by the Council.
- There is also no rationale contained in the CFA record regarding the decision to return his son to his mother’s care following the medical assessment. The Council agreed it should have supported both parents to discuss what should happen. However, there was no obligation on it to do so.
- The case note of the social worker’s visit on 5 September 2019 states that Mr X said that he was willing in principle for the children to return to their mother’s care anytime.
- We cannot know if the outcome would have been different if the Council had consulted Mr X as his son’s mother also had parental responsibility for his son and his son normally lived with his mother for the majority of time. The Council’s response was appropriate. This is not fault by the Council.
Provision of medical report
- Mr X asked for a copy of the medical report under the Freedom of Information Act in September 2019. He was provided with a copy in late October 2019. The Council has agreed that his request was not handled as effectively as it should have been and says it has provided guidance to staff concerning time delays. This is a matter for the Information Commissioner. If Mr X remains unhappy, he could complain to the Information Commissioner about this.
Child and Family Assessment
- Mr X says the medical report was corrected because it contained errors, but the Council used the original unamended medical report to produce the CFA. Records from the Council show it received a copy of the amended medical report which was uploaded to the casefile after the CFA had been completed. The Council did complete the CFA on the basis of the unamended medical report.
- The Council says there were no significant differences between the copies of the report. Mr X had earlier indicated in an email to the Council that he did not dispute the outcome of the medical report. I have seen copies of both the original and the amended report. I agree with the Council. Whilst it is clear that some amendments were made to the medical report, on the balance of probabilities these did not adversely affect the outcome of the CFA. The Council has also included Mr X’s comments about the amended medical report on the casefile. This is an appropriate response and there was no fault by the Council.
- Mr X says the Council has not reviewed the CFA which he disagrees with. The Council has offered Mr X the opportunity to provide information to correct records that he believes are wrong. The Council says this was in the best interests of Mr X’s children, so that they would not be subjected to an additional unnecessary CFA.
- The Council’s second complaint response stated that consideration would be given to reviewing the CFA, not that it would be completely rewritten. The actions taken by the Council show that it has given consideration to how Mr X’s concerns can be incorporated into the CFA. This is not fault by the Council.
Threat to take his children into child protection
- Mr X says a social worker made a threat to place his children in child protection. I have reviewed a recording of a telephone conversation between Mr X and the social worker. The recording shows that the social worker informed Mr X that if he was not willing to engage as part of a child in need plan, then it may be necessary to escalate the issues to child protection. When challenged that this constituted a threat, the social worker responded that he was giving information. The social worker explained the Council would need to assess the situation and that child protection was a possible outcome. This is not fault by the Council.
Consultation with his son’s school
- Mr X says the Council provided an update in March 2020 by email which cannot have been true. The email refers to a discussion between Mr X and a Council officer in early February 2020. The Council stated there was no swearing on the audio recording and that it had consulted the school about Mr X’s son’s behaviour. Mr X says the Council could not have known what was said on the audio recording as no officers spoke his language and that the school were not aware of the audio recording.
- At the time the email was sent to Mr X the Council had the first translation of the audio recording and had agreed to obtain a second translation. On the balance of probabilities, the Council’s comments about the language were based on its understanding of the first translation of the audio recording.
- I have reviewed a record sent by Mr X, of a meeting between himself, the Council and his son’s school. The school clearly state that it was not aware of the audio recording. The Council therefore did not discuss the specific content of the audio recording with his son’s school. The update provided to Mr X in March 2020 does not specifically state that the audio recording was discussed with his son’s school. It is, however, sufficiently imprecise that this could be inferred, correctly or incorrectly.
- The Council accepted in its stage 1 complaint response that no case notes were made about the school being spoken to and it had not spoken to Mr X’s son’s school about his behaviour.
- The update provided to Mr X in March 2020 was therefore not solidly evidenced. This is fault by the Council. The error caused distress to Mr X. Mr X did not suffer any further injustice because the second audio translation has subsequently been obtained and no significant safeguarding concerns were identified.
- The Council dealt with Mr X’s complaint through its general complaints procedure. The Council was not at fault for using this procedure because his complaint was related to safeguarding matters. This is in line with the guidance we give to councils.
- Mr X says the Council did not respond to issues he raised in an email to the Council in November 2019. Although Mr X was clearly not satisfied by the response, it did address the main issues raised by him in November. This is not fault by the Council.
- The Council responded to Mr X’s complaint at stage one within 20 working days. It responded to his complaint at stage two within 30 working days. The Council responded to Mr X’s complaint within the time limits in its complaints policy. This is not fault by the Council.
What the Council has done
- The Council has already apologised to Mr X for the mistakes and oversights in its stage two complaint response, offered to pay him £100 for the delay in obtaining the second translation, and given guidance to its staff concerning time delays and information provided to parents.
- The Council has also offered Mr X the opportunity to provide information to correct records that he believes are wrong. If Mr X remains unhappy about the outcome of this process, he should complain to the Information Commissioner about this.
- To remedy the additional injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
- Apologise to Mr X for the distress caused to him by the delay in investigating his concerns about the childminder, and for wrongly stating in March 2020 that it had discussed the audio recording with the school;
- Pay Mr X a further £200 to acknowledge the distress caused to him; and
- Provide guidance to staff to fully record any actions taken and the outcomes when investigating safeguarding concerns.
- I have found fault by the Council which caused injustice to Mr X. I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman