Summary: Mr and Mrs X complained about the way the Council dealt with an allegation against Mrs X as a foster carer. The Council was at fault in the way it investigated the allegation and dealt with their complaint. The Council failed to resolve a conflict of view within the Council about whether an allegation of emotional abuse should be upheld. It has now reviewed the evidence and changed the outcome to unsubstantiated. The Council will amend its records, apologise to Mr and Mrs X and make a payment. It will issue guidance to officers about the proper handling of allegations. This is a suitable remedy.

The complaint

1. Mr and Mrs X are foster carers for the Council. They complain that when a young person in their care made allegations against Mrs X, the Council:
1. carried out a flawed investigation;
2. refused to change the recorded outcome despite the result of their complaint; and
3. refused to deal with their further complaint about the matter.
2. As a result there is a record on file of a substantiated allegation of emotional abuse by Mrs X. She feels this is unfair and may affect her future fostering career.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
4. 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)
5. 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

6. I discussed the complaint with Mr and Mrs X and considered the information they provided. I considered the information the Council provided in response to my enquiries. I carried out a telephone interview with one of the Council officers involved. I considered relevant law and guidance on dealing with allegations. I shared my draft decision with the Council and the complainants and considered their responses.
7. 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

Relevant law and guidance on investigating allegations of harm

8. Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
9. Statutory guidance ‘Working Together to safeguard children’ (March 2015, updated in 2018) provides guidance about child protection investigations for all agencies. Local authorities should designate an officer or team of officers to be involved in managing and overseeing allegations against people who work with children. The officer in the Council is the Local Authority Designated Officer (LADO).
10. The guidance sets out four categories of harm: sexual abuse, physical abuse, emotional abuse and neglect. It defines ‘emotional abuse’ as the “persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child’s emotional development”.
11. The ‘London Child Protection Procedures’ has a section on dealing with allegations against people who work with children. The procedures apply when there is an allegation or concern that any person who works with children has:
• behaved in a way that has harmed a child, or may have harmed a child;
• possibly committed a criminal offence against or related to a child; or
• behaved towards a child or children in a way that indicates he or she may pose a risk of harm to children.
12. Under these Procedures the LADO is responsible for the management and oversight of investigations into allegations against people who work with children. The LADO does not carry out the investigation. That is the responsibility of the employer. But the Procedures say “the LADO is also responsible for ensuring an appropriate outcome is reached”.
13. The LADO arranges a meeting to discuss the allegations. The Procedures say a meeting will normally only be convened when it has been decided that the threshold of harm/risk of harm has been met. The meeting should discuss the next steps in investigating the allegation and decide whether there should be a child protection (section 47) enquiry.
14. Following the investigation the Council records one of five possible outcomes. It decides whether the allegation is:
• Substantiated – “there is sufficient evidence to prove the allegation that a child has been harmed or there is a risk of harm”.
• Unsubstantiated – “there is insufficient evidence to either prove or disprove the allegation. The term, therefore, does not imply guilt or innocence.”
• Unfounded - where there is no evidence or proper basis which supports the allegation being made.
• False - there is sufficient evidence to disprove the allegation.
• Malicious - there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive.
15. The Procedures say if the investigation finds the facts of the incident are true but does not find that a child has been harmed or there is a risk of harm, then “consideration should be given to deciding that the outcome is ‘unsubstantiated’ or ‘unfounded’”.
16. For all allegations other than those found to be malicious:

“it is important that a clear and comprehensive summary of the allegation, details of how the allegation was followed up and resolved, and a note of any action taken and decisions reached, is kept on the confidential personnel file of the accused, and a copy provided to the person concerned”.

17. The record should be kept at least until the person accused reaches normal retirement age or for ten years from the date of the allegation if that is longer. An unsubstantiated allegation should not be included in employer references.
18. The Procedures advise how employers should keep the accused member of staff informed, as follows.
• There may be restrictions on the information that can be shared, for example where it is not safe, or where it could compromise a criminal investigation. Other than in those cases the employer should, as soon as possible, inform the accused person about the nature of the allegation, how enquiries will be conducted and the possible outcome.
• The accused member of staff should be “treated fairly and honestly and helped to understand the concerns expressed and processes involved”.
• “Providing information to the accused person throughout the process of dealing with the concern or allegation is an essential part of the common law duty to act fairly. The person that is alleged to be responsible for abuse and/or neglect should be provided with sufficient information to enable them to understand what it is that they are alleged to have done or threatened to do that is wrong and to allow their view to be heard and considered.”
19. The National Fostering Minimum Standards says investigations into allegations against carers should be carried out fairly, quickly and consistently in a way that provides protection to the child but also support to the person subject to the investigation.

What happened

20. Mr and Mrs X have been foster carers for the Council for many years. In 2017 the Council placed a teenage girl, G, with them. In September 2017 Mrs X attended a meeting at G’s school to discuss concerns about G’s behaviour and future education.
21. Later that day Mrs X spoke to G about her behaviour. Mrs X was not aware that G was recording the conversation. That evening G left Mr and Mrs X’s home and went to stay with a relative.
22. The following day G reported to her social worker that she wanted a break from her foster care placement. She said Mrs X had said at the meeting with the school that the placement might end if she did not attend school. Also she said Mrs X had shouted at her telling the placement would end if she did not improve her behaviour. After that she had wanted to ‘clear her head’ and stay elsewhere. She said she wanted to be with her family but would be willing to return to the foster placement in a few days.
23. The Council arranged for G to stay with her mother, and a few days later had a meeting with the family. G said she did not want to return to the foster placement with Mr and Mrs X or go to any other foster placement. She played the recording of the conversation she had had with Mrs X. The recording was about four minutes of a conversation G said went on for about an hour. The Looked After Children (LAC) team decided to make a referral to the LADO and to end the placement with Mr and Mrs X. The Council told Mr and Mrs X it had ended the placement and that G had made an allegation against Mrs X.
24. The referral form to the LADO reported the allegation as Mrs X “constantly shouting and emotionally abusing [G]” by saying various things to her. There is a list of examples of what she said taken from the recording. It includes Mrs X warning G that if she does not comply with certain rules and carry out certain tasks the placement would end. It also notes “carer also said to [G] “you’ve broken your mum””. The LADO recorded the allegation under the category of ‘emotional abuse’.
25. The LADO held a safeguarding meeting on 25 September 2017 with the social worker and Team Manager from the LAC team and the Fostering Team Manger to discuss the allegation. By this time the LADO had heard the recording but some of those present had not. The minutes of the meeting says the LADO “read out the list of emotional abuse by [Mrs X]”. This was as set out on the referral form. The meeting decided:
• a social worker not previously involved in the case should speak to Mrs X
• to wait until this had happened before deciding whether to carry out a child protection (section 47) investigation
• G’s social worker would meet G to talk about what had happened.
26. A social worker, SW1, visited Mr and Mrs X at their home a few days later to discuss the events of the day G left the placement. SW1 took notes of the meeting. She told them about the recording towards the end of the meeting but did not play it to them. She produced a written report of the meeting. The Council did not send Mr and Mrs X a copy of the report.
27. The LADO held a safeguarding review meeting on 10 October 2017 to review the information obtained and decide on next steps. By this time all those present from the LAC and fostering teams had heard the recording. SW1 presented her report of the meeting with Mr and Mrs X. The minutes of the meeting note the LADO’s view that [Ms X’s] behaviour was “emotionally abus[ive] and cruel”. He suggested this was sufficient evidence with which to substantiate the allegations made against [her]”. The meeting decided:
• to record the allegation as ‘substantiated’
• the Fostering Team would carry out an assessment of standards of care with Mrs X
• the Fostering Team would do its own internal investigation and refer Mrs X to the Fostering Panel.
28. On 17 October 2017 the LADO sent Mrs X a letter to tell her the outcome of the LADO process. The letter said:
• The process considered an allegation that she had said things to G “which could be construed as emotionally abusive”.
• The professionals involved had listened to the recording and considered the report from SW1. They took the view that Mrs X was ‘loud and bullying’ effectively telling G her placement was no longer secure.
• She had mentioned G’s mother was ‘broken’ “in such a way as to suggest [G’s] behaviour was responsible for this”.
• They concluded that the she way spoke to G was “emotionally abusive and under the circumstances have decided to substantiate the allegation”.
• A record of the outcome will be kept by her employers for ten years or until she retires, whichever is the longer period, and will be mentioned in any employment references provided.
29. Mrs X telephoned the LADO after receiving the letter to object to the findings. The Council sent Mrs X a copy of the recording. The Fostering Team Manager who was to carry out the internal investigation into the complaint against Mrs X said she believed that before starting the investigation “it is only right that you are able to hear the recording we have”. Mrs X also asked for copy of the report of SW1’s meeting at her home which she had not yet seen.
30. After receiving a copy of SW1’s report Mrs X sent in a detailed response. She said SW1 had read her notes back to her when she had finished but the report was very different from what she had read out. She disputed many of the comments and statements in the report. She said it also left out important details of the conversation with G, including the context of the comment about G’s mother being ‘broken’. She explained what she had meant by this and denied that she had blamed G. She complained that SW1 had only mentioned there was a recording towards the end of the meeting and did not ask her questions directly about it. Mrs X said she had told SW1 during the meeting that she was not aware of the full details of the allegation against her and had only been told she had been accused of shouting at G.
31. Mrs X also obtained a report from a forensic audio assessment company and sent a copy to the Council. The report concluded the recording may have been edited.
32. The Fostering Team carried out its own investigation into the alleged incident and a standards of care review. This included meetings with Mr and Mrs X.
33. A social worker from the Fostering Team, SW2, produced a report of her investigation into the allegation. The report noted the allegation was substantiated during the LADO process “as it was felt the recording was enough evidence to determine that [Mrs X] had been emotionally abusive to [G]”. The report contained the following information.
• SW2 noted she had read SW1’s report, Mrs X’s response, all relevant reports, G’s case file and the foster carers’ history, which she said was largely positive.
• In a meeting with Mr and Mrs X, Mrs X had accepted the language she used in the clip of the recording was not the most appropriate and she would not repeat it in future. Mrs X also explained the context of the conversation and what she had spoken to G about. Mrs X said she had wanted to support G and ensure she took her opportunity to achieve in education. She disputed she had implied it was G’s fault that her mother was ‘broken’. She explained she had said this in the context of G’s mother’s own history and felt G should try and empathise with her.
• Mrs X said G had told her it was her mother who had told her to make the recording so she could come back to live with her.
• The report concluded that G desperately wanted to return to her mother and was never going to be fully content with any foster placement. But it said G had built a positive relationship with Mr and Mrs X.
• SW2 said “I have concluded that in the audio clip, although the tone and volume of the conversation…is at times harsh and inappropriate – I do believe this was coming from a good place. [Mrs X] wanted [G] to succeed in education and felt that she had to be firm and clear with [G] so that she could achieve what she wanted to achieve”.
• SW2 confirmed she had advised Mrs X she should not threaten a child with ending a placement as it could be de-stabilising and produce anxiety. She noted “it was reassuring that [Mrs X] could reflect on this and I am sure she will not do this again in the future”.
34. The report, completed in December 2017 and approved by the Team Manager, did not recommend de-registering Mr and Mrs X as foster carers. It recommended continuing their approval but with some changes in their terms.
35. In December 2017 Mrs X sent an email to the LADO to ask him to reconsider the decision on the allegation. She sent a copy of the report from the audio company and her response to SW1’s report. She said the audio report showed the whole conversation had been recorded but part had been edited out and so did not give a true picture of the conversation. She denied blaming G for ‘breaking’ her mother. She disputed the accuracy of SW1’s report and said it was unfair to keep the record of the outcome on file for ten years.
36. A further safeguarding meeting took place in January 2018 where SW2 reported on the outcome of her investigation. Mr and Mrs X’s Supervising Social Worker told the meeting Mrs X did not agree with SW1’s report and felt the LADO had based his view on that report. The meeting recorded the outcome of the allegation as ‘substantiated’.
37. Mrs X said she did not receive a response to her email to the LADO. So in March 2018 she wrote to the Council again with a formal complaint. She said no-one had discussed the recording G had made with her, not even SW1 when she came to take her statement. She said this meant she was never able to “mount a defence against its contents”. She said the audio company had found several breaks in the recording and pointed out it had no beginning or end. She said SW1’s report contained inaccuracies and missed out key information. She also noted that G had visited her at home in February and had spent some time with her.
38. The Fostering Panel met in April 2018 to consider the standards of care review and the Fostering Team investigation into the allegation. The Panel decided to continue the approval of Mr and Mrs X as foster carers.
39. A Service Manager in the Fostering Service considered Mrs X’s complaint. She summarised the complaint as that the Council decided to substantiate the allegation against Mrs X on the basis of a four-minute conversation without giving her an opportunity to listen to the recording. Mrs X said when she listened to it she realised it had been edited and was not an accurate reflection of the whole conversation. She was concerned that the outcome of the allegation would remain on her record.
40. In investigating the complaint the Service Manager reviewed all the paperwork relating to the allegation and listened to the recording. She reviewed definitions of emotional abuse in Government guidance across the UK. Her conclusions were as follows.
• Even if the recording had been edited, it does not change the fact that Mrs X was shouting and using threatening language.
• However the Service Manager did not consider this incident could be classified as ‘emotional abuse’ as it was a one-off incident. All definitions of emotional abuse referred to “persistent mistreatment causing severe and persistent adverse effects on child’s emotional development”. There was no evidence in this case to suggest this behaviour was persistent or occurred regularly to cause a severe effect on G’s emotional development.
• She confirmed the record had to be kept for ten years in line with the London Child Protection Procedures. But she recommended that the LADO should consider changing the wording of the letter to Mrs X telling her the result of the allegation. She said she hoped this would “resolve the problem”.
41. The LADO amended the letter. He changed the description of the way Mrs X spoke to G from “emotionally abusive” to “entirely inappropriate”. He did not change the phrase that it “could be construed as emotionally abusive’. The Council did not change the record of the outcome that would remain on Mrs X’s file.
42. The letter from the LADO is dated April 2018. However Mrs X says she did not receive it until several months later after she had had a meeting with her new Supervising Social Worker in August 2018.
43. In October 2018 Mrs X wrote to the Council wanting to pursue her complaint further about the LADO and SW1. Her complaint included the following points.
• SW1’s report was inaccurate, biased and incomplete. SW1 did not play the recording to her so she could not address it. The recording was only partial and did not give the full context of the discussion with G.
• No-one had told her the allegation was ‘emotional abuse’. She had only been accused of shouting at G. She did not deny she “used harsh tones” to get her point across but did not agree it was emotional abuse.
• She denied accusing G of ‘breaking’ her mother and had explained this to the Council but had had no response. She said the LADO was not in a position to conclude this is what she meant when he did not hear the context of the comment.
• G had visited her twice since she left the placement and the Council had asked her to take her back.
44. The Council’s response was that there is no appeals process to challenge the LADO’s decision and no provision to challenge the LADO process through the complaints system. The Council said it would therefore not investigate her complaint. It set out the role of the LADO. It said if she wished to challenge the outcome or the quality of the LADO’s investigation should raise her concerns with the Fostering Panel as part of her representations about the allegations made against her.
45. The Service Manager who had investigated the initial complaint also responded to Mrs X. She confirmed her professional opinion was that her behaviour did not constitute emotional abuse. However she said during the incident the way she spoke to G was more threatening than just making expectations and boundaries clear.

Analysis – was there fault causing injustice?

46. Based on the information I have seen, I consider there is fault by the Council in the way it dealt with the allegation under the LADO process and in the way it investigated the allegation as employer.
47. The referral form to the LADO says the allegation was that she was “constantly shouting and emotionally abusing” G. The Council has not provided a record of the original report from G where she made the allegation so I do not know what words she used to describe what happened, other than that Mrs X was shouting. But there is an inaccuracy in the record of the allegation. The referral form says Mrs X told G “you’ve broken your mum”. This is not correct. The recording does not contain those words. Mrs X refers to the child’s mother being ‘broken’. The professionals may have interpreted this as blaming the child, but it is not accurate to say she used the words stated. The date of the incident is also not correct on the form as it places it after the date G left the placement.
48. I also consider there were flaws in the way the Council gathered information about what had happened.
49. The Council did not play the recording to Mrs X or provide her with details of what it contained until after it had decided the allegation was substantiated. The Fostering Team Manager commented that it was “only right” that Mrs X should hear the recording before she carried out her investigation. But the Council did not apply this principle before making a decision on the allegation. This meant Mrs X did not have an opportunity to fully understand what the allegation was and respond to it. The Council did not tell her the allegation was one of emotional abuse.
50. There was no agreed statement obtained from Mr and Mrs X. Mrs and Mrs X say SW1 read back her notes of the meeting to them at the end and they were content that it reflected the conversation they had had. They say when they saw the written report it was very different. SW1 says she cannot remember how she fed back the conversation to them but would usually clarify points as she went along and summarise at the end. From Mrs X’s later response to SW1’s report it is clear she does not agree it is a true reflection of what she said. But because she did not see the report at the time, she could not make her objections known until after the Council had made a decision on the allegation.
51. I was not present at the meeting with SW1 and there were no other witnesses so I cannot say for certain whether the report fully reflects what was said. But it is clear from the report that it contains commentary, judgment and opinion, including about the visit itself and the way Mrs X responded. It is not simply a record of a statement made about what happened. SW1 told me the Fostering Team Manager had asked her to speak to Mrs X, gain a general understanding of what had happened and produce a report. He did not ask her specifically to take a statement from Mrs X and had told her not to play the recording. From speaking to SW1 I understand she was keen to provide a thorough and comprehensive report and capture the atmosphere of the meeting. She said she approached the visit in the way she would a visit to a family as part of a social work assessment.
52. I do not doubt that SW1 was trying to follow the instructions she had received. However this was a visit for the specific purpose of investigating an allegation. To comply with the Council’s procedures and the Fostering Minimum Standards to treat the accused person “fairly and honestly” this should have been an information-gathering visit. The purpose should have been to obtain Mrs X’s response to the allegation and take a statement from her that the LADO meeting would consider in deciding whether to substantiate the allegation. In my view the report of the visit was flawed in including extra commentary and judgment.
53. These flaws meant that when the LADO meeting decided in October 2017 to uphold the allegation of emotional abuse Mrs X had not had a chance to fully understand and respond to the allegations. The meeting did not have Mrs X’s full explanation of the context of the conversation with G or on the selective nature of the recording. Mrs X had not seen SW1’s report of the interview with her and had not had an opportunity to challenge the views presented. So the LADO failed to take account of all relevant information in deciding the allegation was substantiated. In my view the LADO and the Council did not do enough to ensure a fair and open investigation as required. Mrs X is left not knowing whether this affected the outcome.
54. I have also seen no evidence that in deciding the allegation was substantiated the Council came to a view about whether there was sufficient evidence that G had been harmed or was at risk of harm. This is a necessary part of deciding whether an allegation is substantiated, or alternatively unsubstantiated on the basis that “the facts of the incident are true” but the threshold of harm has not been met. The first LADO meeting in October 2017 agreed to hold off deciding whether to carry out a section 47 investigation until after SW1 had spoken to Mrs X. But then there was no further discussion about this and no finding of harm. My view is that the Council was at fault in making a finding of emotional abuse without a section 47 enquiry.
55. I also consider that the Council was at fault in failing to resolve the conflict between the LADO and the Fostering Team about whether Mrs X’s behaviour, which all professionals agreed and Mrs X accepted was inappropriate, amounted to emotional abuse. The investigation into Mrs X’s complaint found it did not. Although the LADO amended the wording of the letter to Mrs X, the Council did not change the record of the outcome on file. It remains on the record as a substantiated allegation of emotional abuse. The Service Manager who investigated the complaint hoped the revised letter would ‘resolve the problem’. However the problem remains as there are two contradictory outcomes on record. This is causing Mrs X an injustice as she is concerned that despite the outcome of her complaint, the finding of ‘emotional abuse’ will remain on her record for up to ten years and will be included in any future employment reference.
56. The Council was also at fault in the way it responded to Mrs X’s request to take her complaint further in October 2018. I see no reason why a person cannot complain about the LADO process under the Council’s complaints procedure and there is no specific restriction in its complaints system. Mrs X also raised concerns about the role of SW1, which could have been covered under the complaints procedure. The Council advised her to raise her concerns with the Foster Care Panel. But she had no complaints about the standards of care review or the Panel’s decision-making, and the Foster Care Panel could not have changed the LADO decision. As the Council prevented Mrs X taking her complaint further she had to complain to the Ombudsman.

Agreed action

57. The Council’s complaint investigation concluded that Mrs X’s behaviour did not amount to emotional abuse. I recommended that if the Council could not satisfactorily explain why it did not amend the outcome of the allegation on Mrs X’s record in line with this conclusion, it should take the following action.
1. Carry out a review of the decision by a senior officer experienced in safeguarding investigations who has not been involved in the case to date. The review should take into account all the information that has been gathered during the investigation, the standards of care review and the complaint from G, Mrs X, and the professionals involved. It should include the findings of the Service Manager’s complaint investigation. It should decide whether the allegation of emotional abuse is substantiated, following the guidance and definitions in the London Child Protection Procedures.
2. If the result of the review is to change the previous outcome the Council should amend its records and Mrs X’s personnel file accordingly.
58. The Council agreed to the recommendation and carried out the review. As a result it decided the outcome of the allegation should now be recorded as ‘unsubstantiated’. The Council will amend its records accordingly and write to Mrs X to confirm the decision and apologise for not correcting them earlier.
59. The Council has also agreed that within one month of the decision on this complaint it will write to Mr and Mrs X to apologise for the faults I have identified.
60. The Council agreed it will produce guidelines for officers involved in dealing with allegations to ensure it meets the standards of fairness set out in national and local procedures. It has confirmed it updated its procedures in October 2019 to include the relevant section of the London Child Protection procedures. It says it will be reviewing the procedures again in February 2020 and will issue guidance then.
61. The Council also offered to pay Mrs X £250 to recognise her time and trouble in having to make a complaint and £200 to recognise the inconvenience and stress caused. It offered a ‘restorative meeting’ with managers involved in reviewing the case. As a gesture of goodwill the Council agreed to reimburse Mrs X the cost of the forensic audio report she obtained.

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Final decision

62. I have found that the Council was at fault in the way it dealt with the allegation made against Mrs X and in how it dealt with her complaint. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman