Rotherham Metropolitan Borough Council (18 009 888)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 06 Mar 2019

The Ombudsman's final decision:

Summary: Mr and Mrs F complain about the Council's decision to move their foster child, J, to new carers in February 2016. The Ombudsman has found no fault in the decision to end the placement. There was fault causing injustice by the Council not telling Mr and Mrs F the outcome of two safeguarding investigations; not arranging for them to say goodbye to J; and not sending a letter explaining the decision to move J. The Council has agreed to make a payment to Mr and Mrs F to acknowledge the distress caused.

The complaint

  1. Mr and Mrs F complain about the Council's decision to move their foster child (J) to new carers in February 2016. In particular, they complain:
      1. About the way the section 47 safeguarding investigation in relation to J was carried out
      2. About the way J's move to new carers was handled
      3. About a lack of communication by the Council
      4. That the Council has not carried out all the actions recommended by the Stage 2 report and the Stage 3 panel.
      5. That a lack of information from the Council prevented them from appealing to the IRM about the Council's decision to de-register them as foster carers.
      6. That the Council has failed to deal with damage to their property and the hoist and lift left in their property.
  2. Mr and Mrs F say the situation has caused significant distress to them and their family, prevented them from retiring from fostering with dignity, has affected their health and they have had to spend three years pursuing the matter.

Back to top

The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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)

Back to top

How I considered this complaint

  1. I spoke to Mrs F about the complaint and considered the information she sent, the Council’s response to my enquiries and:
    • The Children Act 1989 (“the Act”)
    • The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review
    • Rotherham Safeguarding Children Board’s Procedure: Allegations Against Staff, Carers and Volunteers (“the Procedure”)
    • Statutory Guidance Working Together to Safeguard Children 2015
    • Statutory Guidance Getting the best from complaints
  2. I sent Mr and Mrs F and the Council my draft decision. I received comments from Mr and Mrs F after I had issued a final decision. I considered their comments and issued an amended statement as a result.

Back to top

What I found

  1. A looked after child is any child who is subject to a care order or accommodated away from their family by a local authority. A looked after child may be voluntarily accommodated under section 20 of the Act or may the subject of a legal order such as a care order under section 31 of the Act.
  2. The local authority has a duty under section 22 of Act to safeguard and promote the child’s welfare and to make services available to them. To achieve these duties all looked after children must have a care plan which is reviewed regularly in meetings chaired by an Independent Reviewing Officer (IRO).
  3. Councils have a duty to make safeguarding enquiries where a child is considered to be suffering or likely to suffer significant harm. The enquiries must establish the child’s situation and to determine whether protective action is required.

Foster care

  1. Children who are looked after by a council may be placed in foster care. When the council proposes to terminate a foster care placement they must carry out a review of the child’s case and ensure that the views of all the people concerned have been heard, including the child (sufficient to his/her age and understanding), parents (where appropriate), and the child’s carer.

Approval of foster carers

  1. Councils only place children with approved foster carers. Councils assess and use a specialist fostering panel to approve carers. A council must review foster carers once a year. The result of the review is either to continue to approve the carers, to withdraw approval or alter the terms of the approval.
  2. Foster carers may ask the Independent Review Mechanism (IRM) to review a fostering panel’s decision not to register them, a decision to de-register them or to amend the terms of their approval. The IRM is an independent body established by regulations. The IRM does not make the final decision, however its recommendation must be considered when the service provider makes the final decision. Foster carers must apply to the IRM within 28 calendar days from the date of the fostering service provider's decision letter.

Allegations against foster carers

  1. Councils appoint Local Authority Designated Officers (LADO) to oversee and manage the investigations of allegations against people working with children.
  2. An allegation may relate to a person working with children who has:
    • Behaved in a way that has harmed a child;
    • Possibly committed a criminal offence against or related to a child; or
    • Behaved in a way that indicates they may pose a risk of harm to children.
  3. The Procedure says an allegation must be referred to the multi-agency safeguarding hub. If the hub’s initial screening suggests there is cause to suspect that a child is suffering, or is likely to suffer, significant harm a strategy discussion should be held involving the LADO. The strategy discussion will determine whether to initiate safeguarding enquiries.
  4. Wherever possible the person should be given a full opportunity to answer the allegation. The employer should share with the employee that an allegation is being considered, unless this would place the young person at risk or interfere with an ongoing police investigation.
  5. Following the conclusion of any safeguarding enquiries, the LADO will determine whether the allegation is substantiated, unsubstantiated, false, malicious or unfounded.

Complaints

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about statutory children’s social care services, such as quality of services and council decisions.
  2. At stage 2 of this procedure, the council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
  3. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

  1. Mr and Mrs F have been foster carers for over thirty years. J, who has profound disabilities, was placed with them under a section 31 care order in 2005 when she was a young baby.
  2. In 2009 another child who had been fostered by Mr and Mrs F (Child 1) raised concerns about the care he had received. Following a safeguarding enquiry, a fostering reassessment reduced Mr and Mrs F’s registration. They appealed to the IRM, which recommended their registration be increased. In 2011 the Council agreed the IRM’s recommendation. Mr and Mrs F then complained to the Council about what had happened; a number of their complaints were upheld.
  3. In August 2015, Child 1 repeated the concerns he had made previously. Another child (Child 2) also made allegations about Mr and Mrs F. The Council held a strategy discussion involving the LADO. It was agreed that two safeguarding enquiries be carried out, one into the allegations raised by Child 1 and Child 2, and one into whether J was at risk of significant harm.
  4. The safeguarding enquiry in relation to J was concluded on 9 September 2015. This found J was not at risk of significant harm and there were no concerns about the care Mr and Mrs F provided to her. It was agreed J should stay with Mr and Mrs F. However, the social worker noted that if the allegations made by Child 1 and Child 2 were substantiated, this would place any child in the care of Mr and Mrs F at risk of harm and neglect.
  5. The safeguarding enquiry for Child 1 and Child 2 continued. In December 2015 the police told the Council they would be investigating Mr and Mrs F about the allegations. The Council therefore started contingency planning in case J needed a new placement. It found potential new foster carers.
  6. In January 2016, there was a meeting with health professionals to discuss J, as she was considered to be entering the end stage of her life. It was agreed she should remain with Mr and Mrs F as they understood her needs. Support would be provided by a hospice.
  7. There was a multi-agency professionals’ meeting the next day, including health professionals and the police, to discuss the situation. It was noted Child 1 and Child 2 had decided not to pursue their complaints. The police were likely to drop the investigation but had found the children to be credible witnesses. The allegations made by Child 1 and Child 2 were discussed.
  8. The social worker visited Mr and Mrs F on 29 January 2016. She explained the police wished to interview Mrs F, but the Council had no concerns about the care they provided to J and had decided J should stay with them.

Decision to end J’s placement with Mr and Mrs F

  1. Following the professionals’ meeting, the health professionals raised concerns with the Council about the allegations made by Child 1 and Child 2. They said they had not known the seriousness of the allegations when discussing J’s end of life care. A further multi-agency planning meeting was therefore held on 1 February 2016.
  2. At the meeting, attendees expressed concerns about J remaining with Mr and Mrs F. They noted that, whilst there was no evidence J had been harmed, she may be at risk of harm as there was an ongoing investigation into the allegations made by Child 1 and Child 2. It was considered there was a need to act as J was very vulnerable and unable to communicate verbally. It was considered inappropriate to leave J in the care of Mr and Mrs F whilst they were the subject of a police investigation. The meeting decided J’s placement with Mr and Mrs F should be ended. As she was already at the hospice for a period of respite, this meant she would not return to Mr and Mrs F.
  3. The social worker visited Mr and Mrs F to explain the decision. They were understandably very distressed and asked if they could say goodbye to J. The social worker agreed to arrange this.

J’s move to new foster carers

  1. The new foster carers that had been found visited J at the hospice and undertook training to enable them to care for her. The plan was for J to move from the hospice to the new carers on 19 February 2016. The social worker arranged for Mr and Mrs F and their family to visit J on her last day at the hospice.
  2. Mr and Mrs F lodged an emergency application for a Child Arrangement Order in respect of J. The court hearing was on 18 February 2016 and the social worker cancelled Mr and Mrs F’s visit to J as she was at court. I have seen no evidence she tried to rearrange the visit. Mr and Mrs F met the new carers to pass on information about caring for J.
  3. On 19 February 2016, a strategy discussion in relation to the safeguarding enquiries about Child 1 and Child 2 found the allegations were unsubstantiated as there was insufficient evidence to either to prove or disprove them.

Mr and Mrs F’s complaint

  1. Mr and Mrs F withdrew their application for a Child Arrangement Order in July 2016. They complained to the Council in March 2017. Because there had been previous correspondence, the Council took the complaint straight to Stage 2. It appointed an independent investigating officer in July 2017 and the summary of the complaint was agreed in August 2017.
  2. The Stage 2 investigation report was completed in November 2017. It upheld 12 of the 27 parts of the complaint, including that Mr and Mrs F were not given a chance to say goodbye to J and there had been poor communication with them. The report recommended the Council apologise and consider Mr and Mrs F’s contact with J at the next review meeting. It also recommended “that RMBC foster care panel considers whether Mr and Mrs F remain suitable as foster carers as soon as possible”.
  3. The Council sent its adjudication letter with the Stage 2 report to Mr and Mrs F on 11 December 2017. It also sent papers for a fostering panel, following a fostering review of Mr and Mrs F.
  4. The fostering panel met on 18 December 2017. Mr and Mrs F decided to resign as foster carers and did not attend.
  5. The Council wrote to Mr and Mrs F on 5 January 2018. It said it had noted Mr and Mrs F had submitted their resignations, however the Council had approved their de-registration as foster carers. The decision letter said Mr and Mrs F had 28 days to appeal to the IRM. Mr and Mrs F say when they approached the IRM, it said they were too late to appeal as they had resigned on 18 December 2017.
  6. Mr and Mrs F made another complaint to the Council in March 2018 about the fostering panel process. They also complained about damage to their property when J’s equipment had been collected and that her hoist was still in their property. The Council responded in May 2018; it did not uphold these complaints. Mr and Mrs F asked for their complaint to be considered at Stage 3.
  7. The Stage 3 panel met in June 2018. It considered Mr and Mrs F had been treated poorly and that communication was inadequate. It recommended the Council write to Mr and Mrs F explaining the decision to end J’s placement. The Council wrote to Mr and Mrs F in August 2018 accepting the panel’s findings. It also sent an apology letter. Dissatisfied, Mr and Mrs F complained to the Ombudsman.

My findings

  1. If a council has investigated something under the children’s social care complaints procedure, the Ombudsman would not re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the Stage 2 investigation.
  2. The Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Mr and Mrs F. The investigation took account of evidence from a range of sources, and addressed each of the complaints in detail. The report shows the investigator weighed the evidence and drew logical and objective conclusions from it. The report is clear, comprehensive and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions.
  3. Mr and Mrs F complained in March 2017; this was treated as a Stage 2 complaint but an independent investigator was not appointed until July 2017. I have seen no evidence explaining that delay. The grounds of the complaint were finalised in August 2017, and the Stage 2 report was issued within 65 working days. There is no fault there.
  4. The Stage 3 panel was convened in 2018 following a further complaint in March 2018. It is not clear to me why Mr and Mrs F did not ask for a Stage 3 panel review in December 2017.
  5. Having considered all the information available to me, I find the investigation was carried out in line with the complaints guidance. I have therefore not re-investigated the whole matter. My role is to look at whether the Council properly considered the findings and recommendations of the independent investigation. I have dealt with each part of Mr and Mrs F’s complaint below.

The way the section 47 safeguarding investigation in relation to J was carried out

  1. Mr and Mrs F say they were not given an opportunity to fully contribute to the safeguarding enquiry and were not kept informed of its progress.
  2. In my view, confusion arises here because there were two safeguarding enquiries. The one in relation to J was started because of the allegations made by Child 1 and Child 2. It was completed in September 2015. The social worker spoke to Mr and Mrs F and to a number of professionals involved with J. She concluded J was not at risk of harm. I have seen no evidence of fault in the way the investigation was carried out. However, I have seen no evidence Mr and Mrs F were told the outcome of that investigation. I consider that to be fault.
  3. The safeguarding investigation in relation to Child 1 and Child 2 was ongoing from August 2015 until February 2016. Mr and Mrs F say they were not kept informed in writing during the investigation. As foster carers they should be told of allegations against them. The evidence shows the Council spoke to Mr and Mrs F about the allegations in October 2015. There was also a police investigation. The case records show the Council told Mr and Mrs F in January 2016 that the police wished to interview them.
  4. In my original decision, I said there was no fault by the Council, as councils are not required to keep people informed in writing about the progress of a safeguarding investigation. In response, Mr and Mrs F noted that the Foster Carer’s Handbook says “If an allegation is made against you [the foster carer], you will be notified verbally and in writing.” I have seen no evidence the Council wrote to Mr and Mrs F about the allegations made by Child 1 and Child 2 in 2015. This is fault.
  5. Following the interview, the police did not pursue the matter and the LADO determined that the allegations were unsubstantiated. However, Mr and Mrs F did not find out the outcome until the Council’s statement to court in May 2016. Whilst the Procedure does not explicitly say foster carers must be informed of the outcome of the safeguarding enquiries, I find it was fault for the Council to not do so.
  6. I have considered the way the Council decided to end J’s placement with Mr and Mrs F. The decision was made at a multi-agency planning meeting after concerns were raised about the allegations made by Child 1 and Child 2. The professionals noted J was very vulnerable as she was unable to communicate verbally and would therefore not be able to raise any concerns about her care. They considered she may be at risk of harm and decided she should move to new carers.
  7. I realise Mr and Mrs F disagree with that decision. The Ombudsman cannot decide whether the allegations were true, whether Mr and Mrs F posed a risk to J, or whether J may have been at risk of harm. My role is to consider whether there was fault in the way the Council made these decisions.
  8. The Council held strategy discussions with the police and health professionals before deciding to conduct safeguarding investigations. When further concerns were raised by professionals it considered these at a multi-agency planning meeting. It was entitled to reach a view on those concerns and it decided to end J’s placement. I have seen no evidence of fault in the way that decision was made. The Ombudsman cannot question council decisions taken without fault.

The way J's move to new carers was handled

  1. The evidence shows that Mr and Mrs F’s chance to say goodbye to J was cancelled on the day, as the social worker had to attend a court hearing following their application for a Child Arrangement Order. There is no evidence attempts were made to re-arrange that visit. I find this to be fault. Mr and Mrs F were distressed at the ending of J’s placement with them and had asked to say goodbye. The Council should have ensured they were able to do so.
  2. There is no evidence of fault in the way the new foster carers were found or prepared to care for J. The Stage 2 investigation upheld Mr and Mrs F’s complaint that J was transported to the new carers home without proper restraint. The injustice caused by that is J’s injustice, so I have not considered it further.

A lack of communication

  1. I have found in paragraphs 49 and 51 that Mr and Mrs F were not told the outcome of the two safeguarding investigations. The Stage 2 investigation upheld their complaint that letters were not replied to and that there was poor communication with them. The Council has apologised for this.

The Council has not carried out all the actions recommended by the Stage 2 report and the Stage 3 panel

  1. The Council sent an apology letter to Mr and Mrs F on 2 August 2018. The Stage 3 panel also recommended they should be sent a written explanation of the decision to move J. In response to my enquiries, the Council said this was included in the August letter, but I do not consider that to be a letter of explanation and I have seen no evidence a further letter was sent.
  2. The Stage 3 panel also recommended Mr and Mrs F’s contact with J be reviewed, training for independent investigating officers, and that the Council ensure the child’s perspective is considered during a complaint investigation. The Council says it has taken these actions and I have seen no evidence they have not been completed.

A lack of information from the Council prevented them from appealing to the IRM about the Council's decision to de-register them as foster carers

  1. Following the fostering panel on 18 December 2017, the Council wrote to Mr and Mrs F on 5 January 2018. It said it had de-registered them as foster carers and they had 28 days to appeal to the IRM.
  2. Mr and Mrs F say the IRM told them they were too late to appeal. In its complaint response, the Council said this was because the 28 days started from the date of the panel because Mr and Mrs F has submitted their resignations on that date.
  3. When a council has made a decision about a foster carer’s registration, the carer has 28 days from the date of the decision letter to appeal to the IRM. Mr and Mrs F’s resignations affected that and it was unfortunate the Council’s letter did not explain the different deadline.

The Council has failed to deal with damage to their property and the hoist and lift left in their property

  1. The case records show that Mr and Mrs F reported damage to the wet room floor in December 2015. The Council agreed an officer would visit to assess what repairs could be done, but I have seen no evidence that visit was carried out.
  2. In March 2018 Mr and Mrs F complained about the damage and also that further damage had been caused when J’s equipment had been collected in February 2016. The Council did not consider these matters as they were outside the time limit of its complaints procedure. The Council was entitled to make that decision and I do not find fault.
  3. Mr and Mrs F told the Ombudsman the hoist and lift had been left in their property, although they were no longer required. In response to my enquiries, the Council said it had no specific policy on this. The case records show the Council had considered the fixed equipment could be the responsibility of the occupational therapy team and may have been installed following a disabled facilities grant. I have seen no evidence the ownership or responsibility for the hoist and lift have been considered by the Council.

Did the fault cause injustice?

  1. There was fault by the Council in not notifying Mr and Mrs F in writing of the allegations made against them; not telling them the outcome of the two safeguarding investigations; not arranging for them to say goodbye to J; and not sending a letter explaining the decision to move J. I consider these faults have caused Mr and Mrs F distress.
  2. The Council has apologised for the distress, but I do not consider this has fully remedied the injustice. Mr and Mrs F had no chance to say goodbye when J had lived with them for ten years and were unclear why she was moved, although this statement helps provide some of that explanation.
  3. There was fault in the Council’s decision letter of 5 January 2018 as it did not give the correct deadline for appealing to the IRM. However, I do not consider that caused injustice to Mr and Mrs F. They could have sought advice from the IRM on receipt of the Council’s letter, which was still within the 28 days deadline.
  4. The Council has not properly considered who is responsible for the hoist and lift in Mr and Mrs F’s home. This has caused them to be unsure whether they have to fund its removal or maintenance.

Agreed action

  1. The Council has already apologised to Mr and Mrs F. In addition, it has agreed to, within a month of my final decision:
    • Pay Mr and Mrs F £500 to acknowledge the distress caused by the fault
    • Write to them explaining why the 2 February 2016 professional’s meeting decided to end J’s placement with them
    • Determine who is responsible for the hoist and lift in Mr and Mrs F’s property. If the Council is responsible it should arrange for the equipment to be removed.

Back to top

Final decision

  1. There was fault causing injustice by the Council not telling Mr and Mrs F the outcome of the two safeguarding investigations; not arranging for them to say goodbye to J; and not sending a letter explaining the decision to move J.
  2. There was no fault in the Council’s decision to end J’s placement with Mr and Mrs F.
  3. The actions agreed by the Council remedies the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page