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Kingston upon Hull City Council (16 014 663)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 21 Mar 2017

The Ombudsman's final decision:

Summary: A children’s social care complaint investigation found the Council was at fault in the way it told Mrs B the foster child she had looked after would not be returning to her care. It was also at fault in the way it handled the process to deregister her as a foster carer. There was delay in the way it handled her complaint. The Council has agreed to offer Mrs B £800 to remedy her injustice caused by these faults.

The complaint

  1. Mrs B complains the Council:
      1. was at fault in the way it deregistered her as a foster carer;
      2. made untrue accusations about her;
      3. did not present her evidence to Court during a Child Arrangement Order;
      4. altered information provided to Court; and
      5. did not provide the Stage 3 review with all the relevant paperwork.
  2. As a result, Mrs B says she has suffered distress and the Council has ruined her good name. She says this has led to her health deteriorating. She also says she has been unable to work as a foster carer since Child A was removed from her care, nearly two years ago and she has suffered financial loss.

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What I have investigated

  1. I have investigated complaints a), b) and e) in paragraph 1.
  2. The Ombudsman cannot investigate a complaint about the start of court action or what happened in court. This includes reports to court, even if they have been written by Council employees. Therefore, I have not considered complaints c) and d) in paragraph 1 because these relate to the Court Arrangement Order proceedings Mrs B commenced with the courts.

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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. 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)
  3. We cannot investigate a complaint about the start of court action or what happened in court. This includes reports to court, even if Council employees have written them. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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

  1. I spoke to Mrs B and considered the information she provided me.
  2. I considered the information provided by the Council. This includes the Stage 2 investigation report and the Stage 3 review. I have also considered the response by the Council to Mrs B after it had completed the children’s social care statutory complaints procedure.
  3. I have written to Mrs B and the Council with my draft decision and considered their comments.

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What I found

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services:
    • Stage 1 – local resolution by the service area. The council should complete this within 10 days;
    • Stage 2 – investigation by an investigating officer and independent person. The investigating officer produces a detailed report and findings to which the council must respond. The investigation must take no longer than 25 days from when the complainant asks for the complaint to go to Stage 2. The council may extend the investigation to 65 days for complex cases. The council must tell the complainant in writing as soon as possible why there is a delay and the date the independent officer will send their response; and
    • Stage 3 – consideration by an independent review panel which may make further recommendations. The council has 30 days to convene and hold a review panel.
  2. If a complainant tells the council they intend to begin court or tribunal proceedings, the council has discretion to either stop the complaint proceedings or put them on hold. In either case, the council must write to the complainant, explaining why, and naming the court or tribunal proceedings.
  3. Councils may include an extra dispute resolution stage between the existing three stages. However this must not cause delays to the timescales set out in paragraph 12.
  4. If a council has investigated something under the children’s social care complaints procedure, the Ombudsman would not normally re-investigate it. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Background

  1. Mrs B is a foster carer. In 2011, she began to foster Child A, a young child of primary school age. The Council’s original plan was for Child A to remain with
    Mrs B until he was 18 years old.
  2. Following an incident reported to the Council by Child A’s school, in February 2015 the Council removed Child A from Mrs B’s home under child safeguarding procedures. The Council put Mrs B’s foster carer status on hold. Mrs B continued to receive the fostering allowance for Child A for six weeks while an investigation took place.
  3. On 10 March 2015, the Council held a review of Child A. It sent a copy of the minutes to Mrs B in error. As a result, she learnt the Council was not planning to return Child A to her care.
  4. On 24 March 2015, Mrs B made an application to the courts for a Child Arrangement Order for Child A. This is a private law order that decides where a child should live and with whom. It gives the applicant parental responsibly for the child. An initial hearing at the beginning of June 2015 considered the Council’s evidence which did not support Mrs B’s application.
  5. On 16 July 2015, Mrs B withdrew her application for the Child Arrangement Order.
  6. In February 2016, around 11 months after the Council had removed Child A from her care, it deregistered Mrs B as a foster carer. This meant the Council removed her from its list of approved foster carers.

Children’s Social Care Complaints Procedures

  1. On 23 March 2015, Mrs B complained verbally to the Council. This was her
    Stage 1 complaint. The Council took 12 weeks to respond.
  2. On 6 July 2015 Mrs B asked for her complaint to go to the next stage of the complaints procedure.
  3. On 23 November 2015, four months after Mrs B asked for her complaint to go to Stage 2, the Council began alternative dispute resolution proceedings. The Council said the delay was due to the Court proceedings and clarification of the complaints with Mrs B.
  4. On 4 December 2015 Mrs B asked the Council to escalate her complaint. The Council agreed to go to Stage 2 of the complaints procedure. The Stage 2 investigation started on 21 March 2016. This was 12 months after Mrs B first complained to the Council.
  5. Mrs B made 16 complaints which she agreed with the investigating officer. Eight of these related to her application to the courts for a Child Arrangement Order.
  6. The investigating officer upheld or partially upheld 11 of Mrs B’s complaints. Where she found fault she also looked at any injustice caused to Mrs B. The investigating officer identified two main areas of fault:
      1. the Council did not correctly tell Mrs B Child A would not be returning to her care. She found out when the Council sent her the minutes of a review about Child A in error. Mrs B said she found this upsetting and the Council agreed that it was a distressing way to find out.
      2. the Council did not follow the correct processes for deregistering her as a foster carer.
  7. Regarding the deregistration process, the investigation found:
    • the process was confusing;
    • the Council did not give Mrs B the right of reply;
    • the deregistration reasons were unclear and unfair;
    • there were serious implications when the Council did not follow procedures; and
    • the process took 11 months and this was too long.
  8. The investigation said “it would appear that the fostering service has fallen short of some of its commitments and there should have been more regard for the stress and anxiety their delay and lack of action caused [Mrs B] … [Mrs B] experienced confusion for many months before being given a final decision on her [foster carer] status”.
  9. The investigation recognised the difficult time Mrs B had experienced. It said “It is the view of the investigating officer that [Mrs B] has been treated unfairly”.
  10. The investigation made a number of recommendations. These included consideration of Mrs B’s request that the Council make a goodwill payment for the negative impact on her emotional and physical wellbeing and her character.
  11. On 6 September 2016, Mrs B asked for her case to go to Stage 3. This was held on 29 November 2016. It agreed with the findings of the Stage 2 investigation.
  12. On 23 December 2016, the Council sent Mrs B its response to the Stage 2 and 3 review’s findings. It agreed with the findings and said “I would like to apologise on behalf of the local authority for those aspects of our service intervention which were not of the standard we aim for, with the consequences you were left feeling confused and let down”.

My findings

Stage 2 and 3 investigations

  1. The investigating officer considered relevant documentation, including Child A’s care files, Mrs B’s foster carer files, school records, legal files and court reports. The investigating officer also interviewed Mrs B and officers involved in the case and staff from Child A’s school. The investigating officer addressed each of the outcomes Mrs B wanted from the investigation and made recommendations.
  2. The Stage 3 review considered the adequacy of the Stage 2 investigation, spoke to Mrs B and officers and reached findings on each complaint. It also made recommendations.
  3. The Council has accepted the findings at both Stage 2 and Stage 3. This includes the findings of fault and the injustice this has caused Mrs B. However, it has not made a finding on whether Mrs B should receive a goodwill payment for the distress she has suffered due to the faults of the Council.

Distress caused to Mrs B

  1. The Stage 2 investigation found fault causing Mrs B distress when the Council wrongly sent her meeting notes she should not have received. As a result, she found out the Council would not return Child A to her care.
  2. Although Mrs B should not have found out how she did, it would have been distressing in whatever way the Council broke the news. However, the manner in which she found out caused her additional unnecessary upset.
  3. The Stage 2 investigation also found fault because the Council did not follow the correct processes leading to Mrs B’s deregistration. This caused her significant and prolonged distress. However, Mrs B has told me she does not want a new assessment as a foster carer for the Council because she has lost faith in the Council.
  4. Mrs B also says the faults led to lost job opportunities as she felt she could not look for fostering work with other agencies while she was waiting for the Council to decide her status as a Council foster carer. Although it is likely Mrs B would have found it difficult to find fostering work during this time, she could have looked for alternative employment outside fostering to mitigate any lost income.
  5. Mrs B wants a payment for lost earnings. The Ombudsman will not award this. This is because fostering allowance is paid for the child and is not an income for the foster carer. The Council paid Mrs B for six weeks when the investigation first started and this was in line with the Council’s policy when there is an allegation against a foster carer.
  6. Mrs B complains the Stage 3 review did not consider all the information she provided about her complaint. However, the Stage 3 report says Mrs B submitted a report, with the support of her advocate which “was received in advance of the meeting and considered with care”. I will not investigate this matter further.

Statutory Children’s Complaints Procedures

  1. Statutory guidance says the complaints procedure should take no more than
    six months from Stages 1 to 3. The complaints process took 22 months.
  2. The Council was entitled to halt proceedings while the court proceedings were underway. These lasted around 4½ months.
  3. The Council carried out alternative dispute resolution proceedings. It was entitled to do so, but this must not lead to the delays in the complaints procedures.
  4. Therefore, the Council took too long to complete the complaints process and this fault caused Mrs B additional frustration and time and trouble.

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Agreed actions

  1. Where someone has suffered injustice as a result of fault by a council, our primary aim is to put people back in the position they would have been in if the fault had not occurred. When this is not possible, as in the case of Mrs B, we may recommend the Council makes a token payment to acknowledge the distress that is caused as the result of fault by the Council.
  2. Within one month of the date of my final decision, the Council should:
    • pay Mrs B £500 to acknowledge the distress it caused her because of the faults identified by the Stage 2 investigation; and
    • pay Mrs B £300 for the time and trouble it caused her when it did not meet the statutory deadlines for undertaking a children’s social care complaint.
  3. The Council has agreed to carry out my recommendations.
  4. Mrs B believes my recommendations do not go far enough. However, I am satisfied the agreed actions are appropriate and proportionate to the injustice caused to Mrs B as a result of fault by the Council.

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Final decision

  1. There was fault by the Council leading to injustice to Mrs B. The Council has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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