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Tameside Metropolitan Borough Council (17 004 887)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 14 Mar 2018

The Ombudsman's final decision:

Summary: Mr B complains about the way the Council held meetings to consider his actions as an adult who works with children. The Ombudsman has not found fault with the way the meetings were held but there was poor record keeping and the Council failed to consider the protocol for missing children. The Council has agreed to apologise to Mr B and to place a detailed note of its reasons for upholding the allegation on his file.

The complaint

  1. Mr B complains about the Council’s actions following an allegation that he acted inappropriately when a child went missing from his care.

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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. 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 have discussed the complaint with Mr B and I have considered the documents he and the Council have sent and both sides’ comments on the draft decision.
  2. 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.

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What I found

  1. The national guidance ‘Working together to safeguard children 2015’ and the procedures of the local children safeguarding board set out the Council’s duties in dealing with allegations against an adult who works with children. The procedures use the word ‘employer’ to refer to all ‘organisations that have a working relationship with the individual against whom the allegation is made.’ This include fostering services, employment agencies or businesses.
  2. Councils must appoint a Local Authority Designated Officer (LADO) to oversee and manage when there are allegations against people who work with children.
  3. An allegation may be that a person has:
    • Behaved in a way that has or may have harmed a child.
    • Possibly committed an offence against a child or related to a child.
    • Behaved in a way that indicates they may pose a risk of harm to children.
  4. The procedures give further examples such as where a person has:
    • Acted in an irresponsible manner which any reasonable person would find alarming or questionable given the nature of work undertaken.
    • Demonstrated an inability to make sound professional judgements which safeguard the welfare of children.
    • Failed to follow adequate policy or procedures relating to safeguarding and promoting the welfare of children.
  5. The procedures say the LADO and the children’s social care team will decide whether the allegations meet the threshold of an investigation under Section 47 of the Children Act 1989. If it does not meet the threshold, then a meeting (initial consideration meeting) should still be held to consider the concern and determine whether the behaviour means the person is unsuitable to work with children.
  6. Comprehensive minutes should be taken of the discussions and the agreed outcomes. The employer may also start disciplinary proceedings and in those cases it may be necessary to carry out a further investigation. Employers have a duty to support the individual through the process.

Missing children protocol

  1. The procedures are aimed at the council, police and other agencies to ensure there is a coordinated response when a child is missing.
  2. They say:
    • ‘Many children will exhibit normal adolescent behaviour testing boundaries and it is not helpful to consider every incident of lateness or absence as high risk. However, some children will need to be treated as missing immediately due to their vulnerability.’
    • A person should check their residence and surrounding area to find the child before contacting the police.
    • The children should be offered an independent return interview and this is the responsibility of the local authority with parental responsibility.

Statutory complaints procedure for complaints about children services

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. This procedure sets out the actions that can be complained about and the people who can complain. If a complaint does not fall under the procedure, it will be dealt with under the council’s corporate complaints procedure.

Key events

  1. Mr and Mrs B foster for agency K, an independent fostering agency. In July 2013, council L (not Tameside Metropolitan Borough Council) placed four siblings with Mr and Mrs B. One of the children is a seven year old girl called C. Mr and Mrs B also have a child together.
  2. There was an argument on the evening of 7 February 2017 and child C told Mr B she would leave in the morning.

Incident of 8 February 2017

  1. On 8 February 2017 the following happened:
    • 08:30 – Mrs B left the house to go to work.
    • 08:30 – The children were getting ready to go to school, supervised by Mr B.
    • 08:35 – C said: ‘I’m leaving now’. She went into the porch and closed the door to the porch.
    • 08:40 – Mr B and the children went to leave the house and realised C had gone. They looked outside but could not see her.
    • Between 08:40 and 08:55 - Mr B dropped his child off at nursery.
    • 08:55 – Mr B dropped two of the children off at school M which was also C’s school. He says he looked for C during the drive to the school and then continued to drive around to look for her.
    • 08:55 – One of the children told school M that C had gone missing.
    • 09:10 – A member from another school contacted school M and said a parent had reported a child walking on her own at 08:55 am. One of the school members had gone out to find the child.
    • 09:15 – C was found. She was with three members of the public and the person from the other school.
  2. Agency K’s social worker spoke to Mr B about the incident on the same day.

Referrals to the Council

  1. On 9 February 2017 agency K spoke to the Council regarding its concerns about Mr B’s actions. The Council agreed to convene a meeting as soon as possible
  2. On 8 February 2017, council L sent a multi-agency referral form to the police. The police sent this to the Council on 13 February 2017.

Meeting on 17 February 2017

  1. The Council organised an initial allegation management meeting on 17 February 2017. The LADO chaired the meeting. The police, agency K, council L and school M attended the meeting.
  2. The social worker for the children, who works for council L, said she had visited Mr B and had told him he had acted inappropriately. She said:
    • Mr B had heard the front door close but did not look for the child.
    • She challenged him on the fact that he had not told the school that C was missing.
  3. School M had written an incident report which was shared at the meeting. The school said it found out from the children, not Mr B that C was missing.
  4. The police said it would not take immediate action but Mr B should be advised to contact the police immediately if it happened again.
  5. The attendants all agreed that an allegation of neglect was substantiated on the facts as they were known as Mr B has acted inappropriately. It was agreed that:
    • There would be no criminal investigation.
    • Mr and Mrs B should be spoken to separately.
    • The children should be seen and spoken to about their placement.
    • There would be a review meeting on 6 March 2017.

Meeting on 6 March 2017

  1. The same agencies attended the review meeting apart from the police. Council L said it had a meeting with Mr B and continued to be concerned as he minimised the allegation.
  2. Agency K said it had met with Mr B and he would not acknowledge that his judgment on the morning was wrong. He blamed the school for misrepresenting what happened and said he acted in accordance with the protocol.
  3. The Council said the outcome of the previous meeting stood.

Further developments

  1. On 31 March 2017 Mr and Mrs B gave notice to council L and said they could no longer care for C and her siblings. Mr B said they did this because they were worried that, if the children were removed from his and Mrs B’s care, they could also lose their own child.
  2. Agency K has decided to put the case before the fostering panel which may result in Mr B’s de-registration as a foster carer.

Complaint and responses

  1. Mr B complained to the Council in May 2017. The Council responded to his complaint at stage 2 of the process in November 2017. He has also complained to the Ombudsman. I have summarised his complaint and the Council’s responses.
  2. Mr B said:
    • The Council did not provide him with a written report or a way to appeal.
    • The LADO refused to meet with him.
    • The Council did not explain to him why the allegation was upheld.
    • The allegation was upheld because he did not call the police. He said he did this because he followed the protocol, but the Council did not consider the protocol.
    • As a result of the Council’s actions, the children will have to leave the placement and he will have to give up fostering.
    • The school’s report on the incident contained ‘malicious fabrication’.
    • The Council should have carried out a return interview.
    • The underlying problem was that he did not have the same rights as an employee because he was a foster carer.
    • The Council should have investigated his complaint under the statutory procedure, not the corporate procedure.
  3. The Council said:
    • The role of the LADO was to convene the meeting and, if possible, agree an outcome.
    • The Council did not have a duty to provide a report.
    • Any child protection investigation was the duty of council L as the children were ‘looked after’ by council L.
    • The employer’s role was to decide what further disciplinary action to take.
    • It was the employer’s duty to share the minutes of the meeting.
    • It did not have to consider his complaint under the statutory procedure as the children were not looked after by the Council.
  4. I have further discussed the case with the Council. I said the minutes of the meeting did not fully explain why the allegation was upheld. I wanted to be clear on which actions Mr B took or did not take led to a conclusion that the allegation was upheld. The Council said it was the following:
    • C went missing while in Mr B’s care and should have been better supervised. Mr B should have immediately checked for C when he heard the front door open.
    • The fact that Mr B dropped off his daughter at nursery and the other children at school suggested he did not sufficiently understand the urgency of the situation or fully concentrated on the search for C which he should have done considering her age and vulnerability.
    • Mr B failed to check with the school whether C was there even though this was the most obvious place she would go to.
    • Mr B failed to let the school know C was missing and to let him know immediately when she turned up.
    • Mr B failed to contact the social worker and the police. He should have done this as soon as he realised she was missing because of C’s age and vulnerability.
    • After the events, professionals spoke to Mr B. His responses suggested he did not accept the concerns. This increased professionals’ concerns as it suggested he may act in the same way in the future.
  5. The Council admitted it did not consider the protocol for missing children at the meeting.

Analysis

  1. The complaint is made more complex because three different agencies are involved. I understand Mr B’s frustration at this, but I can only investigate the Council. The Council’s role was a limited one. The guidance is clear that the Council was not responsible for the following:
    • Inform Mr B of the outcome of the meeting – agency K.
    • Decide whether to carry out a disciplinary investigation – agency K.
    • Decide whether to take disciplinary action – agency K.
    • Carry out a child protection investigation if needed - council L as the children were looked after by them.
    • Carry out an independent return interview – council L as it has parental responsibility for the children. This is normally only done if a child is reported missing to the police.
  2. I therefore do not uphold the complaint that the Council was at fault for not taking these actions.
  3. I also accept that the Council did not have a duty to provide a formal report. However, the procedures say that: ‘It is important that comprehensive minutes are taken of all the discussions and agreed outcomes. The meeting should ensure that, where there is a decision not to pursue any police or social care enquiries, specific consideration is given as to why the alleged behaviour is of concern to those present. This discussion should be clearly recorded.’
  4. The minutes of the meetings do not give enough detail indicating why the allegation was upheld and this is fault. I appreciate it was agency K’s duty to inform Mr B of the findings of the meeting, but there should have been a clear record of what those findings were. That would have helped the agencies such as agency K and council L in their future communications with Mr B.
  5. It is difficult to say to what extent Mr B suffered an injustice because of this. However, I am of the view that more comprehensive minutes would have prevented any confusion and would have helped Mr B when he read the minutes.
  6. Mr B says he should not have been criticised for his failure to call the police as he followed the protocol for missing children in that regard. He says the Council did not follow the protocol.
  7. I agree that the Council should have considered the protocol and its failure to do so if fault. My view is that any injustice as a result of this is probably limited for the following reasons.
  8. Firstly, even if the agencies had the protocol to hand at the meeting, they may still have concluded that Mr B should have called the police much earlier. C was seven years old and therefore very vulnerable to be on her own on busy streets. The police said at the meeting that it would have immediately started a search as this would have been seen as a high risk situation. Therefore the meeting may still have concluded that, as soon as Mr B realised C was not in the house and could not be seen, he should have rung the police.
  9. Secondly, even if Mr B was not criticised for not calling the police, the overall allegation would still have been upheld as it was his other actions which were the focus of the agencies’ concerns, not the fact that he failed to ring the police. The Council set out its reasons for upholding the allegation more clearly in its letter in response to Mr B’s complaint dated 13 November 2017. I note that this letter does not mention the fact that Mr B did not call the police as part of the reasons for upholding the allegation.
  10. Mr B says that the school made a malicious allegation because he has made complaints to the school in the past. I cannot investigate the school but can consider whether the Council has ignored obvious signs that the allegation was malicious. I note that council L’s social worker, the school and agency K all gave the same or similar versions of events. The referrals were made by agency K and council L, not the school. The documents show agency K, council L and the school all spoke to Mr B and the children and the different accounts were discussed at the two meetings. My view is that the Council therefore followed the correct approach to consider the allegation.
  11. I do not uphold Mr B’s complaint that he has been treated differently because, as a foster carer, he is not considered to be an employee. The guidance in dealing with allegations against adults working with children does not distinguish between how the person is employed, in terms of the LADO’s role. Therefore the Council’s involvement would have been the same if Mr B was employed for example as a teacher. I accept that disciplinary investigation or proceedings may be different for an employee or a foster carer but that is not the Council’s role.
  12. I do not find fault in the Council’s decision not to investigate this complaint under the statutory procedure. There are two requirements for a complaint to be considered under the procedure. Firstly, the action complained about must be on the list of actions that fall under the procedure and, secondly, only certain people can make a complaint under the procedure. I have looked through the list, but the actions of a Council acting in dealing with an allegation against an adult who works with children is not on the list. The Council therefore did not have a duty to consider this complaint under the statutory procedure.
  13. However there was fault in the length of time it took to respond to the complaint. The Council’s complaints procedure says it will respond to a complaint at stage one within five working days and at stage two within 20 working days. Mr B complained in May and did not get a reply until November, almost seven months later. This long delay increased his stress and sense of injustice.

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Agreed action

  1. The Council has offered to pay Mr B £300 for the ‘frustration, distress and inconvenience’ he incurred in making the complaint. That is an appropriate remedy.
  2. The Council has agreed to take the following actions within one month of the final decision:
    • Apologise to Mr B for the fault.
    • Add a note to minutes of the meeting setting out more clearly why the allegation was upheld.

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Final decision

  1. I have completed my investigation and found fault by the Council. I am satisfied the action the Council will take is sufficient to remedy the injustice Mr B have suffered

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Investigator's decision on behalf of the Ombudsman

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