Summary: there is no fault by the Council in relation to this complaint about actions taken by social workers during and following an assessment to consider a request for a bath in the family home

The complaint

1. The complainant, whom I shall refer to as Ms B, complains that the Council’s investigation of her complaint about its children’s services team was flawed as it failed to uphold all her complaints and actions taken as a result of the complaints that were upheld were ineffective. Specifically she says it:

1. wrongly refused to end a voluntary child in need assessment when Ms B requested this;
2. wrongly contacted her son’s father without her consent and in spite of a history of domestic abuse directed towards her from him;
3. wrongly encouraged her son’s father to initiate legal action for contact with her son causing distress and incurring legal fees;
4. the Occupational Therapy assessment conducted following a recommendation by the review panel at stage 3 of the complaints process supported her son’s need for a bath but children’s services refused to agree to provide this despite the assessment; and
5. failed to provide her children with emotional support when they became distressed as a result of the assessment and the contact the social worker initiated with her son’s father.

2. The injustice Ms B claims is that her son remains without a bath at home and that she and her son were distressed by the Council’s decision to involve her son’s father in the assessment and their lives.

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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 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

5. I considered the written information Ms B provided with her complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on it.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need. A child is in need if:

• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled.

8. 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. Services offered under section 17 are voluntary and there is no requirement that a family takes them up. For the same reason a family could refuse the offer of an assessment under section 17.
9. A parent who has “parental responsibility” is usually entitled to have a say in decisions about their child’s upbringing.
10. The Council’s guide for completing a child and family assessment says that all parents should be equally involved in the assessment and that the “welfare of the child must not be overshadowed by parental needs”.
11. As part of private law proceedings involving children, the court may ask the Council to produce a section 7 report. The court will then consider the report as part of its decision making.
12. The police routinely notify council children’s services department of incidents where they have been called or contacted if a child is involved or may be at risk. This does not mean that children’s services will pursue such referrals unless the threshold for their services is triggered.
13. 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. The first stage of the procedure is local resolution. 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. 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. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
14. 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.

What happened

Background

15. Ms B has two children. One of her children, X, has a number of health needs including sensitivities/sensory difficulties, anxiety and sleep problems. One of his sensitivities is the feeling of water falling on him when in a shower.
16. Ms B is no longer in a relationship with X’s father and says that there is a history of domestic abuse towards her from him.
17. In November 2016 the Council completed an Occupational Therapy (OT) assessment when Ms B’s family was due to move house. This was primarily to ensure the properly met Ms B’s own health needs. Ms B wanted a bath for X but needed a shower to meet her own medical needs. The OT assessment says that Ms B said “…she would choose a shower over a bath if it is not possible to have both. She was clear she would not manage an over bath shower…” The property the family moved in to had a shower only.
18. In 2019 the Council completed a child in need assessment when Ms B approached the Council for help in getting a bath for X. The assessment concluded that there was no further action for children’s services to take. So, it did not assess X as being a child in need nor did it agree a need for a bath for X. Ms B complained about the decision regarding the bath and some other matters that arose during the assessment. Her complaint was considered under the statutory children’s complaints procedure. The complaints considered at stage 2 of that procedure included:
• the social worker contacted the children’s fathers without Ms B’s consent; and
• the social worker did not stop the child in need assessment when Ms B asked her to.
19. The Council says a total of five OT assessments have been completed to consider the request for a bath since 2016. None has concluded a bath is necessary.

Complaint a)

20. The stage 2 investigation report states that Ms B said she asked the social worker to stop the assessment twice while it was underway but on each occasion the social worker said that as she had already started she would continue and complete the assessment. Ms B has confirmed to me that her requests were made by phone so there is no written evidence of these requests.
21. The investigator found that the social worker was unaware that Ms B had asked for the assessment to stop and the first time the children’s services team became aware of Ms B’s request to stop the assessment was after it had been completed. The investigator found nothing in the case records which stated that Ms B had asked the social worker to stop the assessment whilst it was being undertaken. Ms B has provided a copy of an email she sent to the Council after the assessment was completed in May 2019 in which she pointed out that the assessment was voluntary. The investigator did not uphold the complaint. The adjudicator at stage 2 concluded that she could not reach a finding on this part of the complaint because accounts differed between Ms B and the Council as to whether the request was made. The stage 3 panel also reached the same conclusion.

Complaint b)

22. The stage 2 investigator did not uphold Ms B’s complaint that the social worker contacted her son’s father without her consent. The investigator found that Ms B’s son was already seeing his father at the time the social worker started her assessment and that Ms B provided the social worker with contact details for X’s father when she asked for this. X’s father also had parental responsibility for him. The investigator also said in her assessment that when she spoke to the social worker, X said he enjoyed seeing his father and wanted to see more of him. The investigator did not find any reason recorded on the files giving a reason why Ms B did not want X’s father contacted or involved in the assessment.
23. The Council says the domestic abuse referred to by Ms B was not information it already had. It notes the police had passed on a couple of referrals where Ms B had contacted the police to say that X’s father had called her repeatedly wanting contact with X and she had told the police on one of these two occasions that X’s father was threatening and had threatened to remove X from her care and hit her. The police did not pursue either referral. Children’s social care had not followed up these referrals either.
24. At stage 3 the review panel concluded that this complaint should be upheld. This was because the panel members concluded that the reasons X’s father was included in the assessment was not properly explained to Ms B and were not satisfied that the concerns she expressed about this were not taken into account.
25. The Council agreed that it would remind relevant staff of guidance in regard to obtaining consent when contacting non-resident parents.

Complaint c)

26. The Council says it did not encourage X’s father to initiate legal proceedings around contact with X. The Council accepts that it approached X’s father to contribute to the assessment as referred to above and that Ms B expressed no concerns about him being contacted at that time.
27. The Council says that X’s father made an application to court to formalise contact arrangements with X after Ms B stopped X’s informal contact arrangements with his father. The Council was asked to complete a section 7 report for the court. The social worker undertook a number of sessions with X to inform the section 7 report.

Complaint d)

28. The Council confirms it commissioned a private OT assessment following the recommendation of the stage 3 review panel. It says it commissioned a private assessment to ensure it was entirely independent as there had been four previous OT assessments completed by the Council and health authority OTs which had all concluded that a bath was not needed.
29. The private OT assessment which was completed in 2021. I confirm I have seen a copy of this assessment and that, whilst recognising that having a bath would help X to manage his anxiety, it does not state that X needed to have a bath installed in the family home.
30. The Council confirms the final decision was reached having consulted OT leads in other local authorities.
31. When the Council’s OT manager wrote to Ms B following the assessment in May 2021 she confirmed that a bath had not been recommended by the independent OT. She put forward a proposal to enable X to use the shower already installed in the family’s home including a desensitisation programme and installing a ‘rain’ shower head which means that the water pressure is softer (and which X would be able to manage better as part of the desensitisation programme).

Complaint e)

32. The Council is clear that Ms B’s only real engagement with children’s services has been related to getting a bath installed for X. Apart from its offer to help with a desensitisation programme to assist with using the shower the Council’s assessment did not identify any other needs such as emotional needs so no other support has been offered.

Was the Council at fault and did any fault cause injustice?

33. I consider the stage 2 investigation completed as part of the children’s statutory complaints procedure was thorough and properly undertaken. I have not therefore reinvestigated the matters it considered.
34. I do not consider I can reach any different conclusion to that already reached by the Council in relation to Ms B’s request that the child in need assessment was stopped. Ms B has confirmed that her requests were made verbally so there is no written evidence to confirm this request. Whilst I do not dispute that Ms B made this request verbally, the stage 2 investigator found that neither the social worker nor her manager was able to recall such a request being made. I have no evidence to reach a clear decision on this complaint. For this reason I have no grounds to make a finding of fault against the Council.
35. Based on the information I have seen its does not seem that Ms B expressed concerns at the time about X’s father being contacted and this appears to be supported by the facts that X’s father and X were having contact at the time and that she provided his contact details to the social worker in order that he could be contacted. There is no suggestion that Ms B told the social worker about any history of domestic abuse at this time and the information held by the Council in the form of referrals from the police do not seem to confirm that X’s father posed a risk (given neither the police nor children’s services pursued them at the time and seemingly no further incidents had taken place). On balance therefore I do not consider there are grounds for me to conclude there was fault in the Council’s actions in relation to this though I accept the panel at stage 3 found that the reasons for contact were not clearly explained to Ms B and action was put in place to ensure this did not happen in future.
36. I have seen no evidence that the Council encouraged X’s father to take legal action in order to formalise his contact with X. I would imagine it is possible that the social worker may have advised X’s father to seek legal advice if he asked her how he could formalise the contact arrangements as it seems these were not consistent at the time. But I would not consider this would amount to encouragement to do so and have seen no evidence to support such a belief in any event. There are therefore no grounds for me to conclude there is fault in relation to this part of the complaint.
37. I do not consider the OT report conducted following the stage 3 review panel’s consideration of the complaint supported X’s need for a bath. There are therefore no grounds for me to conclude that the Council was at fault for not agreeing to provide this following that OT assessment.
38. As the social work assessment did not identify X or his sibling as children in need it has not offered any services to the family. I have no grounds to consider its assessment was flawed and therefore have no grounds to question its findings. I do not therefore find fault in relation to this part of the complaint.

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Final decision

39. I have completed my investigation and reached a final decision on this complaint as explained in this decision statement. There is no evidence of fault by the Council in relation to the matters complained about by Ms B.

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Investigator's decision on behalf of the Ombudsman