The Ombudsman's final decision:
Summary: Mr and Mrs X complain that the Council did not accept the findings and recommendations of the stage 3 independent review panel. She also says the stage 2 investigation was flawed because no attempt had been made to contact the police. The Ombudsman finds that there is insufficient evidence to justify the Council’s findings and it failed to follow due process. This caused Mr and Mrs X distress and uncertainty. To remedy the injustice caused the Ombudsman makes a number of recommendations.
- Mr and Mrs X complain that the Council did not accept the findings and recommendations of the stage 3 independent review panel. She says the stage 2 investigation was flawed because no attempts had been made to contact the police.
- Mr and Mrs X say that this has been a very difficult time and has caused them considerable distress and uncertainty.
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)
- 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.
- 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)
How I considered this complaint
- I considered Mr and Mrs X’s complaint and spoke to Mrs X on the telephone. I made enquiries of the Council and considered its response and the documents it provided. I considered relevant legislation and guidelines.
What I found
- The government sets out a three-stage procedure for councils to follow when looking at complaints about statutory social services. The handling and consideration of complaints consists of three stages: stage 1 - Local Resolution, stage 2 - Investigation and stage 3 - Review Panel. (Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
- Stage 1: Staff at point of service delivery try to resolve the complaint.
- Stage 2: An investigating officer (IO) and an independent person (IP) investigate the complaint. The IO is responsible for the investigation and the IP ensures the process is open, transparent and fair.
- The IO writes a stage 2 report which includes:
- details of findings, conclusions and outcomes are against each point of complaint (i.e. “upheld” or “not upheld”); and
- recommendations on how to remedy any injustice to the complainant as appropriate.
- listen to all parties;
- consider the adequacy of the stage 2 investigation;
- obtain any further information and advice that may help resolve the complaint to all parties’ satisfaction;
- focus on achieving resolution for the complainant by addressing his clearly defined complaints and desired outcomes;
- reach findings on each of the complaints being reviewed;
- make recommendations that provide practical remedies and creative solutions to complex situations;
- support local solutions where the opportunity for resolution between the complainant and the local authority exists;
- to identify any consequent injustice to the complainant where complaints are upheld, and to recommend appropriate redress; and
- recommend any service improvements for action by the authority.
- 10 days at stage 1 (with a further 10 days for more complex complaints or additional time if an advocate is required);
- 25 days at stage 2 (with maximum extension to 65 days);
- 20 days for the complainant to request a Review Panel;
- 30 days to meet and hold the Review Panel at stage 3;
- 5 days for the Panel to issue its findings; and
- 15 days for the local authority to respond to the findings
(Department for Education and Skills 2006 Getting the best from complaints: Social Care Complaints and Representations for Children, Young People and Others).
- In March 2015, the LGO published a thematic report highlighting learning from its investigations into the Children Act complaints system, ‘Are we getting the best from children’s social care complaints?’. A common issue raised was delay in the complaint’s procedure. The report gave councils advice about how to avoid this fault.
- If a council considers a child may be suffering, or be likely to suffer, significant harm, it should hold a strategy discussion. The discussion will decide whether to start child protection enquiries under section 47 of the Act.
What happened in this case
- This chronology includes key events in this case and does not cover everything that happened.
- Children who are looked after by a council may be placed in foster care. Councils have their own foster carers and may also use foster carers from private agencies. They may only place children with approved foster carers.
- Mr and Mrs X were registered with an independent foster agency (Agency 1). Mr and Mrs X began fostering two siblings, Child Q and Child Z in September 2014. Their granddaughter born in early 2018 also lived with them.
- On the evening of 2 April 2018, Mrs X reported that Child Q had sexually assaulted her three-year-old grandson. She requested that Child Q be placed with respite carers that evening.
- The Council’s records show that the police told the Emergency Duty Team (EDT) that it planned to arrest Child Q that evening and take forensic evidence. The Council did not consent to the arrest. It said that Child Q had complex needs. It was agreed that a safeguarding strategy meeting would take place the next day to discuss how Child Q should be interviewed. The Council decided that Child Q should remain with Mr and Mrs X that evening.
- On 3 April 2018, Agency 1 contacted Child Q’s social worker (SW1) and explained that Mr and Mrs wanted Child Q to leave, that day. At the safeguarding strategy meeting SW1 said that Child Q had an appointment with child and adolescent mental health services (CAMHS) on 6 April 2018 and it was hoped that Mr and Mrs X would keep him until then. Mr and Mrs X demanded that JR be removed that day, which he was.
- In June 2018, Mr and Mrs X complained to the Council. They said that Manager 1 and SW1 had acted unprofessionally. They said:
- SW1 wrongly informed the police that Child Q was autistic, which resulted in delays in the police investigation into the alleged assault;
- The Council left Child Q in their care for 19 hours after the incident and asked them to care for him until 6 April;
- They were asked to meet the children’s contact worker in [City A] to facilitate contact between Child Q and Child Z and their birth mother, despite them being explicitly clear that they did not want to see Child Q.
- The Council responded to the complaint and acknowledged Mrs X’s feelings that they did not feel supported throughout the process. The Council did not uphold complaint 1 on the basis that there was no evidence that incorrect information had been shared with the police. The Council upheld complaint 2 and 3.
- In August 2018, Mrs X asked for her complaint to be taken to stage 2. The Council appointed an IO and IP. There was a meeting and correspondence between Mr and Mrs X and the IO over the next few weeks to agree the points of complaint.
- In relation to the complaints relevant to this investigation Mr and Mrs X and the IO separated the complaints into the following headings:
- Complaint 1: That the Council, in particular Manager 1 interfered with a police investigation regarding Child Q. This resulted in:
- Child Q not being removed on the 2 April 2018 as Mr and Mrs X had requested;
- Evidence not being taken by the police in an appropriate fashion on the night in question;
- Child Q not being interviewed by the police on the night in question;
- Child Q not being prosecuted.
- The IO did not uphold complaints 1 and 4. The IP agreed with the IO’s findings.
- The Council sent an adjudication letter to Mr and Mrs X on 29 January 2019. The AO agreed with the findings of the stage 2 investigation and apologised to Mr and Mrs X. The letter stated that if Mr and Mrs X remain dissatisfied, they should contact the AO or the complaints team to discuss any further options.
- Mr and Mrs X asked for their complaint to be taken to stage 3, an independent review panel.
- The Council arranged the stage 3 review for March 2019. Mr and Mrs X presented additional information including police records.
- In relation to the complaints relevant to this investigation, the stage 3 panel made the following conclusions:
“In connection with [Mr and Mrs X’s] complaint that key people were not interviewed and relevant information not sought in the Stage 2 investigation the Panel has concluded that the investigation was not as thorough as it should have been. Had the investigator interviewed police officers, school staff and the manager of the foster agency he may have reached different decisions to the first, second and fourth elements of the complaint”
- In relation to the complaints relevant to this investigation, the stage three panel made the following recommendations:
- A further apology to Mr and Mrs X based on the panel’s findings.
- In respect of Complaint 1, the stage 2 decision of ‘not upheld’ should be considered ‘unsound’.
- In respect of Complaint 4, the stage 3 decision of ‘not upheld’ should be changed to ‘upheld’.
- That [Mr and Mrs X] should be offered a without prejudice ex gratia payment of £500 in recognition of the time and trouble they have gone to in pursuing their complaints.
- The Council’s representative wrote to Mr and Mrs X on 15 April 2019. The Council rejected the stage 3 panel’s findings in respect of Complaint 1. The Council’s representative said that “there was no immediacy to remove [Child Q] from the home as he was safe and asleep in bed. The representative added that, “a social worker should have visited Mr and Mrs [X] the next morning to discuss the situation and made a plan to move [Child Q] appropriately, timely and safely”.
- The Council’s representative said that the recommendation in respect of complaint 4 should be to amend the element to ‘non-resolvable’ and not ‘upheld’ as recommended by the panel. The representative said that the “additional evidence presented at panel from the Police OEL record noted that [Manager 1] had advised the Police that Child Q had autism however this is the Police Officers recollection and notes of the call. The case records are well documented and any reference to autism would be included, however there is no mention of autism in the Children’s Social Care case records”
Independent learning review.
- The Council arranged for an independent consultant to complete a multi-agency reflective review of the case. In relation to the complaints relevant to this investigation, the review made the following findings:
- Where an allegation of possible sexual harm is made, the need to secure vital forensic evidence to be jointly agreed between the police, children’s social care and health, in line with safeguarding procedures.
- An agreed written record of all strategy discussions between the police, children’s social care and any other agencies to be created in a timely way that takes account of all historical concerns.
- The outcome of the review was shared with Mr and Mrs X by letter on 18 December 2019.
- When a council has investigated a complaint under the Children’s Act complaints process, the Ombudsman would not normally re-investigate it. However, in the case of the complaint 1 and 4 there were divergent views at different stages of the complaint process. For that reason, I have considered these aspects of Mr and Mrs X’s complaint.
- I am grateful for the careful consideration undertaken by the independent learning review. It has highlighted certain errors in the process which I consider have implications for the Council’s decision that child Q should remain in foster placement on the evening of the alleged incident, with Child Q, Mr and Mrs X and their granddaughter. The review has also identified certain lessons to be learnt from Mr and Mrs X’s complaint and the Council will ensure that these lessons are circulated amongst relevant staff and best practice is identified for the future.
- Having now considered the information available, my view is that, the absence of key historic case records, failure to identify the high risk Child Z posed to Child Q and to other children in the household, as well as a lack of consideration of the emotional impact on Mr and Mrs X are significant omissions and must call into question the Council’s subsequent decision that Child Q should remain in foster placement that evening of 2 April 2018. I note the Council’s view that there was no immediacy to remove [Child Q] from the home as he was safe and asleep in bed. However, to reduce any further risks that Child Q may have posed to Child Z and Mr and Mrs X’s granddaughter, it is my view that the option to place Child Q with respite carers could have been explored that evening.
- I consider that the police records, including the recording of the telephone conversation that took place between Manager 1 should have been sought as part of the investigation. Furthermore, I consider an interview with the police was important to proper consideration of complaint 4. I cannot conclude that the outcome would have been any different but the failure to not seek evidence from the police for the duration of the complaint process exacerbates the uncertainty caused to Mr and Mrs X, as it was clearly very relevant to the decision making process and it was fault to not have made effort to obtain this evidence.
- With regards to the complaint process, in producing the stage 3 adjudication letter the Council should have invited comments from all attendees at that stage 3 panel. There is no evidence that the Council did this. This is fault.
- The Ombudsman cannot question the merits of decisions taken properly. But I am satisfied that there is sufficient evidence to say that the Council’s decisions in respect of the above, were not taken properly and the complaint process in respect of complaints 1 and 4 was flawed at Stage 2.
- I therefore consider there has been fault by the Council causing injustice to Mr and Mrs X.
- In addition to the recommendations made by the stage 3 panel, the Council has agreed to the Ombudsman’s recommendations.
- Within one month of the final decision, the Council will:
- Accept the findings of the stage 3 panel in respect of complaint 1;
- Set aside its findings in respect of complaint 4 and amend the outcome to ‘unsound’;
- Make a further payment of £150 to acknowledge the time and trouble caused to Mr and Mrs X in bringing their complaint to the Ombudsman;
- Ensure that the statutory complaint procedure is followed with regards to stage 3 adjudication and consultation with panel members.
- I have completed my investigation finding fault by the Council causing injustice to Mr and Mrs X.
Parts of the complaint that I did not investigate
- We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police. (Local Government Act 1974, sections 25 and 34A, as amended)
Investigator's decision on behalf of the Ombudsman