The Ombudsman's final decision:
Summary: The Council was at fault for failing to implement some of the remedies recommended by the independent investigator at stage 2 of the Children Act 1989 complaints procedure. It was also at fault for significant delays in investigating Ms B’s complaint, and for failing to notify her when it had fully completed its reinvestigation into issues highlighted by the stage 3 panel. The Council has agreed to apologise to Ms B and pay her £200 to recognise her injustice.
- The complainant, whom I refer to as Ms B, complains about how the Council supported her as a foster carer. She completed the three-stage Children Act 1989 complaints procedure in January 2016, when the Council wrote to her with its response to the stage 3 panel’s conclusions. However, the stage 3 panel recommended that the Council reinvestigate two of Ms B’s complaints, and this meant that Ms B was unsure if, or when, the complaints procedure had concluded.
- Ms B also complains about numerous events which have taken place since January 2016, and says that these should be considered as part of her statutory complaint because she was unaware the statutory complaint was not still active.
What I have investigated
- I have investigated the complaints which were considered as part of Ms B’s statutory complaint, which began in August 2014 and ended in January 2016. Although this complaint is very old, I have exercised discretion to investigate it because of the confusion about when the procedure ended.
- The final paragraph of this decision statement sets out why I have not investigated other matters.
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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 spoke to Ms B about her complaint, and considered information provided by Ms B and the Council.
- I wrote to Ms B and the Council with my draft decision and gave them the opportunity to comment.
What I found
- I will consider each part of Ms B’s complaint in turn, below.
- Several of Ms B’s complaints were upheld during the complaints procedure, either by the stage 2 investigating officer (IO) or the stage 3 panel.
- The IO upheld the following complaints:
- Ms B’s fostering status was not reviewed after 12 months, as per fostering regulations and as she was told it would be;
- Ms B was not provided with adequate training or given a Personal Development Plan;
- Paperwork was not provided to Ms B at the start of placements and her logs were later removed for several months;
- Ms B was given the wrong names for children in her care, and this error was only corrected by the Council a week later;
- Ms B was given delegated authority for children in her care, but the Council denied this in a looked after child (LAC) review until she provided a form;
- The Council did not support Ms B during the end of her first placement and through the children’s return home; and
- Ms B was not advised of potential risks from the parents of two children in her care.
- Ms B’s supervising social worker (SSW) did not check the logs Ms B had kept on one of her supervisory visits; and
- The Council did not provide enough supervisory support to Ms B after she submitted her complaint in August 2014.
- As these complaints have already been investigated and upheld, I have not investigated them further. However, I have reviewed whether appropriate remedies were recommended and implemented.
- Two of the IO’s recommendations have been implemented by the Council. However, there is no evidence it reviewed a sample of other cases or apologised to Ms B. This was fault by the Council.
- Given that this complaint is almost four years old, I have considered whether a review of a sample of cases would be relevant or appropriate. Usually I would only make such a recommendation if there was evidence of wider systemic fault. I note that the Ombudsman has only ever received one other complaint about the Council on a similar issue, and we declined to investigate it. As a result, I have no evidence of wider systemic fault and, although the Council was at fault for failing to implement the IO’s recommendation, I do not consider a review of a sample of cases necessary.
- However, I do consider that the Council should apologise to Ms B for the faults identified by the IO at stage 2 of the complaints procedure. It should also apologise for its fault in the complaint upheld by the stage 3 panel.
- With regard to the complaints upheld by the IO in his reinvestigation, I note that, although Ms B got very little supervisory support from July 2014 and March 2015, she had no placements during this period, and she herself had asked that she not meet with her SSW until her complaint was concluded. As a result, I do not consider her to have suffered an injustice and I will not recommend a remedy.
- Although it appears that Ms B’s SSW failed to check the logs Ms B had kept on one of her supervisory visits, I do not consider this to have caused Ms a significant injustice either, so, again, I will not recommend a remedy.
Ms B was not given advice about contact with children after they had left her care
- On 23 May 2014 two children left Ms B’s care and were returned to their parents.
- On 4 June Ms B spoke to her SSW and said she had had contact with the children since they returned home. The SSW told Ms B that contact must not continue.
- On 9 June the children’s mother told the Council that she had called Ms B because the children were upset, and Ms B had spoken to the children.
- On 10 June Ms B told her SSW that she had called the children’s mother three times the previous weekend. The SSW told Ms B, again, that she could not have unauthorised contact with the children.
- The IO concluded that the Council did not initially know that Ms B was having further contact with the children and, when it found out, it told her she could not do so.
- As this was Ms B’s first placement, it is possible that she did not know she should not have maintained contact with the children after they had left her care. This potentially explains why she continued to have contact.
- Although I accept that Ms B may not have initially been aware of the Council’s expectations, I do not accept that the Council did not advise her of correct procedure when it needed to. When it found out she was still in touch with the children, it told her she should not be. She continued to have contact with the children and their mother. This was her choice and was not because the Council did not support her properly.
- As a result, I have not found fault with the Council.
Ms B did not have the opportunity to respond to allegations the Council made about her
- Ms B says the Council accused her of:
- being too attached to children in her care;
- trying to access children’s personal information;
- seeing children after placement without the Council’s knowledge;
- withholding information from the Council; and
- putting a post on Facebook criticising the children’s return home.
Meeting held on 21 October 2014
- Ms B says, in this meeting, the Council made unsubstantiated allegations and the manager spoke to her in an inappropriate way. She says she was not supported during the meeting, and the meeting minutes do not reflect what was discussed.
- The meeting minutes describe, in some detail, the series of issues which the Council brought up with Ms B. I cannot say whether they were absolutely accurate, and the length of time which has passed means any recollection of the meeting is unlikely to be reliable. The same is true of whether the manager spoke to Ms B in an ‘inappropriate’ way.
- Case records suggest that the issues the Council brought up in the meeting were based on information it had received – in some cases, from Ms B herself. To that extent, I do not accept that what the Council said in the meeting was ‘unsubstantiated’.
- I do not know what support Ms B needed during the meeting. Previous records do not suggest that she was unable to speak on her own behalf, and there is no evidence that she requested support before the meeting.
- As a result, I have not found fault with how the Council acted during the meeting on 21 October 2014.
- The stage 3 panel’s decision to ask the IO to reinvestigate 2 of Ms B’s complaints appears to have caused some confusion, not least to Ms B. Stage 3 panels have the authority to make their own findings on complaints, and can request relevant documents to enable them to make such decisions. It is not clear why, having indicated errors in the IO’s report, it did not seek to make its own new findings.
- When the panel asked the IO to reinvestigate two complaints, the complaints procedure regressed, in part, back to stage 2, rather than being properly completed. It is not clear whether Ms B should have had the opportunity to bring those two issues back to a stage 3 panel, or at what point she could have brought all her complaints to the Ombudsman.
- When Ms B first brought her complaint to us in February 2016 the Council told us the complaints procedure was not yet complete because of the reinvestigation. Given that the Council had already sent Ms B its adjudication letter in response to the stage 3 panel report, this would appear to be at odds with the correct process set out by the Children Act complaints procedure.
- The issue is further complicated by the fact that, after the – undated – reinvestigation was completed, there is no evidence that this was passed onto Ms B, or that she was then advised to progress those two complaints to a stage 3 panel or to the Ombudsman.
- There is nothing in law or guidance which specifically prohibits a stage 3 panel from deciding that an IO should reinvestigate complaints. This means that, despite the reservations I have set out above, I have not found fault in the decision.
- However, I have found fault with the Council for failing to pass on the reinvestigation to Ms B or advise her that she could then approach the Ombudsman. This caused an injustice to Ms B in that she experienced uncertainty and it delayed the opportunity for her to ask the Ombudsman to investigate the complaint. The Council should provide a remedy to recognise her injustice.
Delay in complaints procedure
- Ms B submitted her stage 1 complaint on 8 August 2014, and the Council responded on 3 September.
- The Council met with Ms B to discuss her complaint on 21 October, and after this – on 11 November – she asked the Council to progress the complaint to stage 2. The Council issued its stage 2 response on 14 September 2015.
- Ms B requested a stage 3 panel on 22 October 2015. The panel completed its report on 14 December, and the Council issued its response to the panel report on 27 January 2016.
The Children Act 1989 Representations Procedure (England) Regulations 2006
- The Regulations (and their accompanying guidance) set out the terms of the Children Act 1989 complaints procedure.
- Regulation 14(1) says councils must respond to stage 1 complaints within 10 working days.
- Regulation 17(3) says councils must respond to stage 2 complaints within 25 working days of the complaint being made; however, Regulation 17(6) says, if a council cannot comply with this time limit, it can be extended to 65 working days.
- Regulations 19 and 20 say stage 3 panels must complete their reports within 35 working days of the complainant requesting a panel, and councils must issue their response to the panel report no more than 15 working days after its completion.
- The Council was seven working days late in issuing its stage 1 response to Ms B. The stage three panel was three working days late completing its report, and the Council was 11 working days late issuing its response to the panel report. Although these were delays, they were not long enough to have caused Ms B any significant injustice.
- However, even with the extension allowed by the Regulations, the Council should have issued Ms B with its stage 2 response by the end of February 2015. It did not issue the response until September 2015, which was a delay of almost seven months. This was fault by the Council and it should provide a remedy to recognise Ms B’s injustice.
- The Council was at fault for failing to implement some of the remedies recommended by the IO at stage 2 of the complaints procedure.
- The Council was at fault for significant delays in investigating Ms B’s complaint.
- The Council was at fault for failing to notify Ms B about the IO’s reinvestigation and for failing to give her the opportunity for those two complaints to be considered further.
- Having considered the complaints which were not upheld as part of the statutory complaints procedure, I have found no other fault with the Council.
- The Council has agreed to write to Ms B and apologise for the failings identified at stage 2 and 3 of the statutory complaints procedure, and by the IO in his reinvestigation. In this letter the Council has also agreed to apologise for the delays in investigating her complaint, and for failing to notify her when the reinvestigation was complete.
- The Council has agreed to make a payment of £200 to Ms B to recognise the uncertainty she experienced as a result of the Council’s fault.
- These actions should be completed within six weeks of the date of this decision statement.
- The Council was at fault for failing to implement some of the remedies recommended by the independent investigator at stage 2 of the Children Act 1989 complaints procedure. The Council was also at fault for significant delays in investigating Ms B’s complaint, and for failing to notify her when it had fully completed its reinvestigation into issues highlighted by the stage 3 panel. The agreed actions remedy Ms B’s injustice.
Parts of the complaint that I did not investigate
- I did not investigate any of Ms B’s complaints which were not considered as part of the statutory complaints procedure. This is because the Council should be given an opportunity to respond to complaints before complainants approach the Ombudsman. The Council says it has not received any formal complaints from Ms B since the statutory complaint. She should submit a complaint about later issues to the Council if she wants the issues to be considered.
Investigator's decision on behalf of the Ombudsman