The Ombudsman's final decision:
Summary: Mr C was investigated by the Local Authority Designated Officer (LADO) after he withdrew money from his foster child’s account on two occasions. The Council has agreed to reconsider its finding of ‘substantiated’ on the complaint made against him, to reconsider its use of the LADO process and to make a financial settlement.
- The complainant, whom I shall call Mr C, complains the Council referred him to the Local Authority Designated Officer (LADO) unnecessarily after he had transferred money from a bank account he controlled. This was after informing the Council he was doing so because of safeguarding concerns. Mr C says the Council then never fully investigated the matter but substantiated its finding against him.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
- 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)
- 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.
How I considered this complaint
- I considered the information submitted by Mr C with his complaint and made enquiries of the Council and considered its response. I also conducted a visit to the Council and interviewed officers. I refer to ‘Working Together to Safeguard Children’ (2015), which is statutory guidance explaining how allegations against those working with children should have been managed at that time. I spoke to the person in the bank who first heard the allegation made about Mr C. I sent Mr C and the Council a copy of my amended draft decision and took comments into account before issuing my decision.
What I found
- Mr C is a foster carer. A young person, D, was placed with him on 23 December 2013. Mr C opened two bank accounts for D at the bank where he worked and told officer X, D’s social worker, that he had done so. Because D was under 18, Mr C had full control of these accounts. One of the accounts was instant access and D paid his wages from his part time job and his college bursary into it. The other was a savings account and Mr C paid in his own money on D’s behalf. D could access both accounts although Mr C discouraged him from using the savings account given it was intended to help him in the future if he wanted to buy a car or make larger purchases. D had a bank card for the instant access account and could use this card (with another form of identification, such as a provisional driving licence) to transfer money into his instant access account from his savings account if he wanted to.
- On 23 October 2015, Mr C withdrew £150 from D’s savings account. On 25 November 2015, when D was not living with him, another £323 was withdrawn. There was a third (non-financial) action on the account in February 2016. On the grounds this was non-financial and Mr C’s link worker was later told how it could have happened, and accepted the explanation, I am not looking at this further. Mr C had returned money to D’s account in December 2015.
- When D visited his branch with his social worker, officer Y, in March 2016, he said he knew nothing about the October and November transactions. He also said he thought he was ‘banned from the branch’. D wanted to make a complaint. Officer Y thought this was so serious she reported the matter to the LADO. Her view, and the view of other officers, was that Mr C had ‘possibly committed a criminal offence against a child’.
- The outcome of the LADO investigation, at its third meeting, was that the allegation was substantiated.
- Mr C made complaints to the Council about what had happened. He remained dissatisfied with the Council’s replies to him and asked the Ombudsman to investigate
What should have happened
- The Council should have a policy about who can set up a bank account for a looked after child or young person and who controls that account. It might also cover where the account should be held. Any policy would be expected to include how the account should be managed and how the child can access the money (or if they can access money).
- There should be traceability. If money goes out of an account there should be a way of showing the child or young person understands why this is and the purpose the money is being put to.
- Where foster carers have safeguarding concerns, which might affect their decisions about money, we would expect them to contact their supervising social worker, or the child’s social worker. Between them, they should agree whether any action needs to be taken. There should be a decision about review. Foster carer diary sheets should reflect these actions and they should be signed off by the social worker and securely kept.
- The foster carer’s responsibility would be to carry out the actions (if they were involved) and refer back to the Council if necessary. Where children and young people do not return to previous placements, we would expect a disruption meeting to be held. Alternatively, previous foster carers might be invited to contribute or attend the following Annual Review in order to discuss how matters might be moved forward. Financial issues should be discussed at that meeting so monies move with the child or young person.
- If social workers have concerns about financial arrangements of looked after children, we would expect them to refer this to the LADO. However, referrals to the LADO should be accurate and detail what officers know of events. If an investigation is thought appropriate, after considering all the facts of the case, natural justice suggests someone should be able to speak for those accused of wrongdoing. Evidence should be sourced, particularly if it might suggest someone was innocent. To substantiate an allegation, a LADO needs to show that one of the criteria for referring matters to the LADO has been proven.
- If the LADO decided someone should not control a bank account for a child, they should remove the person’s name from the account immediately.
What did happen
October to December 2015
- The first transaction, where £150 was withdrawn from D’s account on 23 October 2015, took place when D was in placement with Mr C. Mr C says this money was used for driving lessons. Mr C had also spent some of his own money on lessons as D was taking an intensive course. Mr C spent a further £57 on D’s provisional licence and his theory test.
- The Annual Review of November 2015, when D was still in placement, says ‘There have been recent concerns in relation to D who has been drawn to his birth family and has absconded from placement to be with them on a number of occasions recently. (Mr C has) worked incredibly hard to encourage D to return to (his) care and resettle back into placement and associated daily routines of going to college and attending part time work’. Further, ‘D has made excellent progress in terms of maintaining part time employment and whilst D deserves credited (sic) for this major achievement, it should be noted Mr C himself was instrumental in getting D the job. D has been taking driving lessons and (Mr C) celebrated with him when he passed his theory test’. It acknowledges Mr C ‘worked hard with D around drugs and taking care of himself’ and that D was ‘negatively influenced by peers and family members (drugs issues and absconding) that have had a direct influence on his holistic progress’. Mr C is an ‘effective communicator’ and ‘will update relevant Local Authority personnel should they need to update relevant professionals on issues relevant (to D)’. D’s placement with Mr C is clearly shown as positive for him although there were concerns that D would be, and had been, exposed to drugs.
- The second transaction was where £323 was removed from D’s account on 25 November 2015. Mr C says this resulted from a safeguarding concern. D was going missing from care to go to his mother’s house where alcohol and drugs were available to him. Mr C provided phone records showing he called officers W and X, connected to D, he says to advise them of concerns on 24, 25 and 26 November 2015. D was the only child looked after by this team that Mr C had in placement; these telephone calls can only have been about D. Mr C says that in one of those conversations, on 25 November, he was advised to move D’s savings to his own account in order to safeguard D. He moved the money that day. Although there are no recordings of those telephone conversations, Mr C included this in his weekly fostering diary starting 23 November. This says: ‘(officer W) advised (Mr C) to remove D’s savings for the time being, which (Mr C) agreed to do’. The diary sheet says Mr C spoke to officer X and said he would remove the money as a safeguarding action given D was getting drugs and alcohol at his mother’s house and could use his savings if he took appropriate identification to the branch. When asked by the Council, officer W said he did not recall the conversation; he did not deny a conversation had taken place.
- Mr C was clear he was ‘removing D’s savings’. He also sent an email to officer X on 26 November to say ‘I have his savings in my account which I’ll keep onto for the time being in case he is spending them on drugs’. This was in an email trail including concerns from Mr C that D was back on drugs as he was harassing Mr C, which was out of character. The email was not responded to neither was it flagged to management as irregular.
- On 14 December 2015, £266 was transferred back to D’s account. The diary record from the week commencing 7 December says Mr C ‘spoke to (officer Y [who had replaced officer X as the child’s social worker]) on 10/12 in regards to D’s savings in my account as unlikely for him to return…Explained I will put them back agreed to take back money owed for DL (driving licence) and theory test (a sum of £57) as can be reclaimed through them agreed they would (settle?) with D now living with mum’. Therefore, on 14 December, Mr C paid back £323 minus £57, on the understanding the Council would reimburse D for the £57.
- The diary record also says Mr C spoke to officer Y about D not coming to the bank branch given he had been threatening Mr C who thought he might have to involve the police if harassment continued. Mr C advised officer Y that D could access his account at two other nearby branches.
- Once the money was paid back, Mr C had a reasonable expectation that the matter was closed.
- Mr C says that when officer Y had later come to collect D’s belongings, she ‘demanded’ ‘his’ television, which belonged to Mr C not D. Mr C felt this was rude and did not think she was supportive to him as a carer.
March 2016 to date
- Officer Y accompanied D to the branch of the bank where Mr C worked on 9 March. D said to officer Y that Mr C had told him he was ‘banned from the branch’ so wanted officer Y to accompany him.
- Officer Y said that when they went into the branch, D’s details on his account were updated. D wanted information about his account. Transactions were shared with him. D said he was not aware of the withdrawals and wanted to make a complaint.
- Following this meeting at the branch, officer Y spoke to the LADO and officer Z (the senior social worker). ‘Working Together to Safeguard Children’ (2015) says referrals to the LADO should be made where there is an allegation related to a person who works with children who has:
a) behaved in a way that has harmed a child, or may have harmed a child;
b) possibly committed a criminal offence against or related to a child; or
c) behaved towards a child or children in a way that indicates they may pose a risk of harm to children.
- Officers Y, Z and the LADO both agreed the matter should be formally reported. Officer Z filled in a form and submitted it to the LADO on the basis that Mr C had possibly committed a criminal offence against or related to a child
- The LADO decided that, given the seriousness of the allegations, they should be investigated. There were four LADO meetings at which the matters were discussed. The police were also informed although they took no action as D did not wish to pursue it with the police and no criminal activity was proven.
- The Council says that once an allegation is made to a LADO, there are four possible outcomes:
- Substantiated: there is sufficient evidence to prove the allegation
- Malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive
- False: there is sufficient evidence to disprove the allegation
- Unsubstantiated: there is insufficient evidence to either prove or disprove the allegation. The term, therefore, does not imply guilt or innocence
The Council’s complaints process
- Once the LADO decided the complaint was ‘substantiated’, Mr C raised a formal complaint. He wanted the Council to overturn the LADO substantiated finding.
- There was no policy about bank accounts for children and young people in place at the time. The Council cannot criticise Mr C for controlling the accounts given he set them up. Because Mr C ‘could’ withdraw funds; it could not be considered a possible criminal offence that he did so. The Council’s failure to acknowledge this is fault and it caused Mr C distress.
- Because there was no policy, Mr C had nothing to rely on when running the accounts. He could not have known what would happen, in relation to questioning how he was running it, or how the Council would seek to address an allegation against him. This is fault and it caused Mr C distress.
- Mr C would have no reason to tell D he was banned from the branch. Mr C says he did not tell D this although D may have thought this was the case if he had been told about the conversation between officer Y and Mr C about harassment. However, it is not clear why the Council considered this was so significant it should be investigated by the LADO. This is fault and it caused Mr C distress.
- When Mr C felt he was being harassed by D, he did not know officer Y would still choose to allow D to manage his account at Mr C’s branch. Officer Y told me that the other two branches were some distance away so it was impractical for D to access his accounts at either of them. Mr C was not told of the decision and he should have been. This is fault and it caused Mr C distress.
- The Council knew D was having driving lessons and that he had passed his theory test from the Annual Review. There was no effort as part of the process to identify evidence that might support Mr C’s claim that there was no case to answer for the first withdrawal. No effort was made to contact the driving instructor to identify how much was paid or to ask for corroboration from D’s mother or D as to who paid what for the driving lessons (and how). This is fault and it caused Mr C distress. I consider the first transaction was for driving lessons for D. D’s mother and D both acknowledged D had paid money out for this purpose. On the balance of probabilities, D was aware of this and benefitted from it. There are no grounds to conclude there was possible evidence of criminal behaviour with the first transaction. It is unclear how this met the threshold for LADO investigation. This is fault and it caused Mr C distress.
- There is evidence from telephone logs, which show Mr C tried to contact officers to get advice before he made the second withdrawal from D’s account; the relevant diary sheet also shows this as well as the email sent to officer X. The diary sheets were not accessed by the LADO as evidence supporting Mr C. When I looked for them on the Council’s system, I could not find them. They had not been placed on Mr C’s or D’s file in spite of being important to the case. Mr C had not been asked about the sheets since officer X saw them at the time. This is fault and it caused Mr C distress. The Council told me that the email where Mr C says he has D’s money in his account; ‘does not inform the officer of a withdrawal…it is not explicitly stated to be an unauthorised (without the permission of the young person) withdrawal from the account’. D could not have given permission given he was mostly staying with his mother by then. He would not have agreed that his ‘savings (should be) in (Mr C’s) account’. The email clearly shows D’s money was not in D’s bank account. The Council did not enquire about this at the time although the email is clear. This is fault and it caused distress to Mr C. If there was, or could be, any concern related to the amount and whereabouts of D’s money, or the question of who was controlling the account, this could have been clarified at the time. There is no evidence Mr C was attempting to deceive the Council or that his motives were of concern or that he could possibly have been committing a criminal offence against a child. This is fault. It caused Mr C distress.
- When D formally moved from Mr C’s care and officer Y came to move his belongings, Mr C thought she was rude and unsupportive to him. This is one person’s word against another’s. The Council disputes officer Y behaved in this manner, officer Y also disputes she behaved in that manner and I have no grounds to conclude she was although that was clearly Mr C’s perception. Similarly, when officer Y accompanied D to the bank, the Council says discussion of the complaint was ‘done privately’. I spoke to the person who initially took the complaint in the branch. She told me officer Y was ‘‘loud’ and ‘aggressive’, which she suggested was ‘inappropriate’ given officer Y was in a public area at the time. Mr C says he had customers asking him if everything was OK as they were aware a complaint had been made. He says this caused him reputational damage and avoidable distress. D’s recollection was that officer Y was not loud or aggressive but was ‘quite quiet…like he was with his mother rather than a social worker’ although this could refer to the private meeting he and officer Y had with the bank manager later. I am not able to reach a finding on this matter because of the different accounts.
- Once the matter was referred to the LADO, Mr C should have been asked immediately for a full account of what happened. Although the first LADO meeting said officer Z would ask for a full account from Mr C, she did not ask Mr C for this. The Council said ‘Mr C was asked many times to present any information he considered appropriate. He also had independent support to assist him in doing this’. This is not the case. Mr C should have been asked for all his evidence and to make a case right at the start of the process. The Council’s failure to do this is fault and it caused Mr C distress. After the first LADO meeting officer Z could have said ‘you need to submit information in writing for the next meeting on 6 April’ and what that information should be. As it was, Mr C did provide an outline of what happened on 28 March so it was not the case at the second LADO meeting that the named officer ‘has not yet had (Mr C’s) input in writing’. If Mr C was not told what the information needs were, he could not provide what the Council wanted. The Council failed to ensure that actions agreed at the LADO meeting were carried out. This is fault and caused Mr C distress.
- Mr C explained to officer Y that money was being put back into D’s account some three months before officer Y came into the branch with D. Officer Y did not mention this in the LADO referral although she told me, in interview, she knew the money had been paid back. This was not known by everyone present at the LADO meeting, however. Officer Z said she was not aware of this. Officer Y was also aware that it was Mr C’s own money that he was paying to D’s saving account. Officer Z was not. The LADO process should have made sure everyone present knew the facts of the case. That they did not know this is fault, which caused Mr C distress. Further, Mr C told me he would have paid the full amount of money back to D if the Council had thought either transaction was irregular. He was not asked to do so. Considering, at the last LADO meeting, there was still some question as to whether all the money had been paid back to D, this is fault. The Council should have identified whether D was owed any money at the start of the process as arguably, this was the most important aspect.
- There is no one speaking for Mr C at LADO meetings. There is no reflection on social work practice and what officers W, X and Y should have done when they became aware of what was happening (including when the diary sheets were submitted). On the balance of the evidence, there were no grounds to say any possible criminal action had taken place. Some of the evidence the Council had in its possession was not given to the third LADO meeting. This is fault.
- Mr C did not feel the Council investigated the matter properly or that the Council tried to find evidence to support him. I agree. The Council’s failure to do this is fault and it caused Mr C distress.
- Just as the matters complained of do not meet the criteria for LADO investigation, so the weight of evidence does not support a ‘substantiated’ finding. It is not clear what the Council has substantiated as officers said there was no suggestion that Mr C had ‘possibly committed a criminal offence against a child’. Neither of the other two LADO criteria apply. It is unclear what has been substantiated. This is fault and it caused Mr C distress.
- The Council should have held a disruption meeting once D’s placement came to an end. Mr C could have been invited to contribute to D’s next Review to discuss how matters might be moved forward. The Council’s failure to do this is fault. The Council should also have taken steps to set up another bank account for D so it could transfer money from the account Mr D had set up. This would have allowed the account at Mr C’s branch to be closed immediately after the LADO finding. The Council’s failure to do this is fault. However, as Mr C could have chosen to make a banker’s draft for the amount to D’s social worker instead, there is no injustice to him from this failure.
- The Council should have been clear with Mr C, when it responded at Stage One of its complaints process, that it would not overrule a finding by the LADO. Its failure to do so is fault and it caused Mr C distress.
- There is now a policy on bank accounts for children and young people. The Council should ensure that the policy, and any action taken on accounts, is reviewed periodically.
- The Council has told me the emphasis on the LADO process ‘is on learning, both for individuals and the organisation and is an important part of ensuring that all children are safeguarded, supported and can be confident should they wish to raise any matter. In addition, individuals, such as foster carers, can be confident that the circumstances of any event can be fully considered and understood’. The relevant statutory guidance says: ‘when things go wrong there needs to be a rigorous, objective analysis of what happened and why, so that important lessons can be learnt and services improved to reduce the risk of future harm to children’. There was no ‘rigorous, objective analysis’ of the Council’s role here. This is fault. In fact, the Council’s own actions were not analysed at all. LADO investigations aim to ‘reduce the risk of future harm to children’ but if the practice of all involved is not assessed, the Council cannot do that. This is fault and it caused Mr C distress.
- A ‘substantiated finding’ from the LADO not only impacts on the person receiving it but also their family. It cannot be appropriate to see the LADO process solely as an educational tool. This is fault, which has caused Mr C distress.
- Once the LADO decided the complaint was ‘substantiated’, Mr C raised a formal complaint. He wanted the Council to overturn the LADO substantiated finding. Although the Council would not be able to do that, it did not say this explicitly in its Stage One response to his complaint. This is fault. Mr C felt he had been misled by the Council as to what it could or would do. This caused Mr C distress.
- The Council should apologise to Mr C where it has acted with fault causing injustice to him. It should do so within one month of the date of my decision.
- Mr C has been caused distress by the actions of the Council. The distress has been prolonged as it started from when the matter was referred to the LADO in March 2016. It has had negative effects on his family. Furthermore, Mr C also suffered avoidable distress thinking he would be unable to continue to foster and then thinking the Council could overturn the finding. The Council should pay him £1000 for his distress within three months of the date of my decision.
- The allegation does not reach the threshold of being a possible criminal offence against a child. The Council has said it accepts this was not a possible criminal offence against a child. There are no other criteria the allegation fits that could have a substantiated outcome. The Council should therefore reconvene the LADO meeting, identify the fault in the Council’s own actions, arrive at an evidenced finding and write a letter to Mr C and his partner informing them of this. It should do this within three months of the date of my decision.
- The Council should consider its use of the LADO process as an educational tool. It should also change its procedures, within four months of the date of my decision, to ensure it asks for evidence at the earliest possible stage and that it is clear what its evidence needs are. It should be clear what it is investigating and why. It should ensure all those present share information and understand the full circumstances of the case, including whether children or young people need a remedy to the fault (in this case, it needed to identify if D had received all the money back that he should have done). It should ensure that staff carry out actions they have been tasked with. It should identify evidence that it might gather from others (in this case, from the driving instructor, D’s mother and D) and encourage analysis of the actions of all parties not solely the person accused. Staff should use the learning from this complaint going forward.
- The Council should hold disruption meetings where placements end abruptly in an unplanned way. This would capture all the learning from the previous placement and identify useful ways to support young people going forward. It should amend its procedures within four months of my decision.
- Mr C should have been informed that D would be expecting to access his account through the branch where Mr C worked even though he asked officer Y to enable him to access a different branch. The Council should ensure it keeps foster carers informed of decision making that affects them; requests and responses to those requests should be traceable. The Council should change its procedures within four months of the date of my decision.
- The Council should ensure diary sheets are retained in case they need to be referred to in investigations. The Council should consider how best to do this within three months of my decision. There should be a clear verification process by the supervising social worker so there are assurances they are accurate. There should be an expectation that information on them will be followed up as necessary at the time.
- The Council should make it clear when it answers complaints that it will not overrule a LADO finding. It should amend its procedures to make that clear within three months of my decision.
- Fault leading to injustice, remedy agreed.
Investigator's decision on behalf of the Ombudsman