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London Borough of Merton (19 004 353)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 10 Jul 2020

The Ombudsman's final decision:

Summary: Mr and Mrs B complain about the Council’s foster for adoption scheme. Mr and Mrs B believe the Council misled them about the likelihood of being able to adopt a child. The Ombudsman has found fault with the Council causing injustice. The Council has agreed to make a financial payment to Mr and Mrs B for the distress they experienced.

The complaint

  1. Mr and Mrs B complained about the Council’s foster for adoption scheme (FfA).
  2. Mr and Mrs B believe the Council misled them about the likelihood of being able to adopt a child placed with them under the foster for adoption (FfA) scheme. Mr and Mrs B experienced considerable distress when the child placed with them was returned to his birth family.

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What I have investigated

  1. I have investigated whether the Council followed policy and procedure in relation to them as foster to adopters and its complaints procedure
  2. I have not investigated the Council’s decision for the child to be placed in a FfA placement. This decision was part of court proceedings and is out of the Ombudsman’s jurisdiction.
  3. I have not investigated the Court’s decision to return the child to his birthparents. This is a matter for the Court and is out of the Ombudsman’s jurisdiction.
  4. I have not investigated alleged inaccuracies in an independent review report commissioned by the Council. There is another body better placed to consider this aspect of the complaint, the Information Commissioner.

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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 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)
  2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)
  4. 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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How I considered this complaint

  1. I considered:
    • Mr and Mrs B’s complaint and the information they provided;
    • documents supplied by the Council;
    • relevant legislation and guidelines;
    • the Council’s policies and procedures; and
    • Mr and Mrs B and the Council’s comments on a draft decision.

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What I found

Legislation and Guidance

Early permanence

  1. Section 22C (9A) of the Children Act 1989 places a duty on councils to consider placing a looked after child, for whom they are considering adoption, with foster carers who are also approved prospective. Such placements are known as Fostering for Adoption (FfA).
  2. The carers may be approved prospective adopters who have been temporarily approved as foster carers for a named child under regulation 25A of the Care Planning, Placement and Case Review (England) Regulations 2015.
  3. It is possible that such a placement may not lead to adoption, for example because the child’s plan changes where rehabilitation with the birth family is successful.
  4. Councils need to ensure that people who are willing to care for a child in this way are fully aware that the placement may not lead to adoption, and have been given appropriate information and training so they understand their role and legal responsibilities as foster carers and ongoing support once the placement has been made (Department for Education, 2014, Early permanence placements and approval of prospective adopters as foster carers statutory guidance).
  5. Case law has emphasised the importance of complete frankness: 'In every case of an early permanence placement there must, from the outset and at every stage thereafter, be complete frankness coupled with a robust appraisal of the realities.' (Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2013] 3 FCR 481).
  6. Prospective adopters who have signed an early placement permanence agreement should not be joined as parties to the proceedings and should not be given leave to make an application for an adoption order (Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983, [2015] All ER (D) 118 (Sep)).

Support for FfA carers

  1. The responsible council should provide appropriate training and development opportunities for, and support and supervision to, FfA carers so they can carry out their role effectively (Department for Education, 2014, Early permanence placements and approval of prospective adopters as foster carers statutory guidance).
  2. Councils also have a duty to provide prospective adopters with counselling, advice and information (Department of Education, 2013, Adoption statutory guidance).

Statutory Complaint Procedure

  1. Section 26(3) of the Children Act, 1989 provides that all functions of the local authority under Part 3 of the Act may form the subject of a complaint. Including:
    • an unwelcome or disputed decision;
    • concern about the quality or appropriateness of a service;
    • application of eligibility and assessment criteria; and
    • assessment, care management and review.
  2. Section 26(3) and section 24D of the Children Act, 1989 and section 3(1) of the Adoption and Children Act, 2002 require the responsible authority to consider representations including complaints made to it by:
    • any local authority foster carer (including those caring for children placed through independent fostering agencies); and
    • persons wishing to adopt a child.
  3. The complaint procedure is independent and impartial. It has three stages with strict timelines. Once a Council has initiated the statutory complaint procedure it cannot curtail the process.

Merton’s Complaints Policy

  1. Merton has a two-stage corporate complaint procedure:
    • Stage one: will be investigated by a member of the service team and agreed by their service manager. A response will be sent to the complainant within 20 working days.
    • Stage two: a stage two investigation reviews the investigation and outcome of a Stage one complaint and is conducted by a member of the Complaints Team. Investigations will usually be completed within 25 working days.

What happened

  1. This chronology includes key events in this case and does not cover everything that happened.

Background

  1. Mr and Mrs B approached the Council in March 2016 about adoption. Between August and November 2017, the Council assessed them as potential adopters. As part of the assessment process, they attended Adoption Preparation Training; one of these sessions was focused on FfA. Mr and Mrs B reflected that FfA would reduce the number of placements a child had to have and meant a child could be placed with them sooner. They recognised with FfA there was uncertainty about whether it would result in adoption.
  2. On completion of the assessment, the Council recommended Mr and Mrs B as potential adopters. The Council noted their interest in FfA. Their application and assessment was considered by the adoption panel in Janurary 2017 and they were accepted as adopters in February 2017.
  3. The Council met with Mr and Mrs B in July 2017 to discuss the possibility of them providing a FfA placement for C. At this meeting they discussed FfA at length including the uncertainty around the long-term plan for C and the potential for him to return to his birth parents. On this basis, Mr and Mrs B agreed for for C to be placed with them. Mr and Mrs B signed a written agreement that said they agreed to proceed with FfA knowing “the outcome of the on-going court proceedings is not known. The child can be returned to the birth parents or birth family members.”. The Council linked Mr and Mrs B with an adopter who had been through FfA to discuss the process and act as a buddy; this relationship did not offer the support Mr and Mrs B expected.
  4. At the Council’s selection meeting, the Council noted that Mr and Mrs B had not attended the FfA training. The Council felt this was mitigated by the training and preparation the adoption social worker had provided. The Council noted that Mr and Mrs B were aware C could be returned to his birth family, which would be a loss, but one it felt they could manage. The Council decided C should be placed with Mr and Mrs B. The Council recognised it was likely to be a challenging placement and Mr and Mrs B would need to be supported to manage the uncertainty around the long-term plan for C.

Placement

  1. C was placed with Mr and Mrs B in August 2017. During the placement planning meeting the Council reiterated there was a risk that C would return to the care of his birth parents; the Council advised Mr and Mrs B to prepare themselves for this.
  2. The Council arranged for them to be paid fostering allowance which included the costs of travel to and from C’s contact with his birth family.
  3. Mr and Mrs B attended C’s Looked After Child (LAC) Reviews. Below is an overview of the discussions about C’s long-term plan:
    • August 2017 - attendees discussed the plan for C. Mr and Mrs B said they wanted C to be happy even if it meant he did not stay with them.
    • November 2017 - the Council stated an independent social worker report suggested C’s father might be able to care for him. The Council confirmed its plan for C to be adopted had not changed. Mr and Mrs B said the only thing they were finding difficult was uncertainty over the Court decision.
    • March 2018 - the Council advised C’s father wanted him to return to his care. The Council confirmed its plan for C was permanency via adoption.
  4. C’s social worker met Mr and Mrs B, either together or individually, in August, September and November 2017 and January, February and March 2018. In September, November and March C’s social worker spoke to them about the potential for him to be returned to his birth family. In January she made a referral for Mrs B to access counselling because of anxiety caused by the uncertainty of the outcome for C.
  5. In April 2018, the Council told Mr and Mrs B its care plan for C had changed. It explained it was going to recommend C be returned to the care of his birth family. The court subsequently ordered that C was to live with his birth family and the FfA placement ended.

Review

  1. Following a complaint made by Mr and Mrs B, the Council commissioned an independent agency to review the case. The review was completed in July 2018 and its findings included:
    • There could have been more analysis of the possible impact of the stresses and uncertainties of an FfA placement on Mr and Mrs B.
    • Some staff had limited understanding of FfA and were not aware of FfA policies.
    • Concerns raised about Mr and Mrs B’s ability to manage the uncertainty of a FfA placement were not explored.
    • Mr and Mrs B have had no contact from the Adoption team since C was removed from their care.
    • C’s placement resembled a concurrent planning placement rather than FfA and this is something Mr and Mrs B would not have signed up for.
  2. The review made recommendations for the Council to address the issues identified.

Learning

  1. The Council made concerted efforts to learn from this case and developed an action plan to address issues identified in the case review. Actions included:
    • updating policies and procedures;
    • creating new service booklets;
    • rebranding the service from ‘foster to adopt’ to ‘early permanence’;
    • staff training;
    • introduction of an early permanence screening matrix;
    • introduction of transition plans that explain what happens if the child returns to the birth family; and
    • adding an addendum to the carers adoption assessment report that focuses solely on whether the carers are suitable for the early permanence service.

Complaint

  1. In April 2018 Mr and Mrs B complained to the Council via their MP and in May they made a formal complaint. The Council said it would meet with the couple and commission an independent review of the case. The independent review was completed in July 2018; see above.
  2. The Council initiated the statutory complaints procedure. It progressed to stage two in May 2018 and an investigating officer and independent person were assigned to the case. Mr and Mrs B were unable to meet with the investigating officer until July 2018. Following this meeting, the investigating officer sent Mr and Mrs B a statement of complaint. Mr and Mrs B wanted to consider the findings of the independent inquiry report before agreeing to the statement of complaint. By the end of September 2018, Mr and Mrs B were yet to agree a statement of complaint.
  3. The Council reviewed the case and realised it had followed the wrong complaint procedure. It should have used the corporate and not the statutory complaint procedure. The Council asked the Ombudsman for advice about how to progress the complaint in October 2018. It was agreed that the best way forward was to correct the error, apologise to Mr and Mrs B and to investigate the parts of the complaint that could be considered.
  4. In November 2018, the Council told Mr and Mrs B it would use the corporate not the statutory procedure to consider the complaint going forward. The Council said it could not use the statutory complaint procedure because Mr and Mrs B did not fall into a category of person able to complaint about the child under the Children Act 1989. The Council explained the parts of the complaint it could consider within the complaint procedure; it confirmed it could not investigate whether C should have been placed in a FfA placement. It also said because “the review was undertaken by an independent person and as the outcomes and recommendations of it are their professional judgement of that independent person, it cannot be considered as part of a complaint to the council.” It told Mr and Mrs B it would respond in 25 days at stage two of its corporate complaint procedure.
  5. Mr and Mrs B were unhappy with the Council’s decision. The Council offered to meet with Mr and Mrs B in January or February 2019 to discuss their complaint. Mr B explained he had made a Subject Access Request (SAR) and would like the meeting to take place after he had received the information he requested. Mr told the Council in March 2019 that his SAR had been processed and asked for the meeting to go ahead. The Council explained what it could consider at stage two of its complaint procedure and asked Mr B to confirm his complaint. Mr B was unhappy that the Council would not investigate all aspects of his complaint.
  6. In April 2019, the Council wrote to Mr and Mrs B with its stage two response. It partially upheld the following:
    • As carers Mr and Mrs B were not considered – the Council found case supervisions repeatedly highlighted the uncertainties about the long-term outcome for C. The Council partially upheld the complaint because, “it appears that you were not offered adequate training in order to equip yourselves fully.”.
    • It was only after Mrs B asked for counselling that the Council organised it – this was partially upheld because counselling was not offered at the start of the placement.
    • The training provided by the Council didn’t prepare Mr and Mrs B and support was minimal - the Council found no evidence, “that sufficient and adequate preparation and training was provided and that you were managed through the process.”.
  7. Despite identifying these faults, the Council did not offer a remedy.
  8. Mr B challenged the Council’s reason for not investigating whether C should have been placed in a FfA placement. The Council referred him to the Ombudsman.

Analysis

  1. The Council explained the FfA scheme to Mr and Mrs B. However, as recorded in the minutes of the Council’s selection meeting, the Council did not arrange for Mr and Mrs B to attended specialist FfA training. This training should have been offered to Mr and Mrs B before they had to decide whether to take part in this scheme so they could make a more informed decision. Not arranging for Mr and Mrs B to attend the training was fault. The Council does not accept this finding.
  2. Concerns were raised by Council staff throughout the placement about Mr and Mrs B’s ability to manage the uncertainty of the placement and the situation if C was removed. There is no evidence the Council put in additional support for Mr and Mrs B to explore and manage the uncertainty until counselling was offered in January 2017. The Council should have considered providing this support to Mr and Mrs B sooner given its concerns, and not doing so was fault. The Council does not agree with this finding.
  3. Records show the Council reiterated to Mr and Mrs B there was a chance C would not be placed with them long-term. However, Mr and Mrs B say they agreed to the placement on the basis it was FfA, all necessary assessments had been completed and the Council was recommending adoption for C. Mr and Mrs B felt it was a ‘done deal’. The independent review stated, “C’s placement resembled a concurrent planning placement rather than FfA and this is something Mr and Mrs B would not have signed up for.”. I do not share this view. On the balance of probabilities, I believe Mr and Mrs B would have accepted the placement based on the information available at the time.
  4. In FfA circumstances change. Indeed, Mr and Mrs B say they understood the risks. The Council kept Mr and Mrs B updated about developments in the case and changes in its plan for C. There is no evidence the Council misled Mr and Mrs B about the likelihood of being able to adopt C given the information available at the time.
  5. The Council cannot predict if and when a family member will put themselves forward to be assessed to care for a child. Equally, the Council will not always be able to predict the outcome of a case as ultimately, the decision rests with the Court. In any FfA situation, regardless of the Council’s actions, it will be distressing for foster to adopters if the Court decides a child should return to their birth parents.
  6. The Council started to consider Mr and Mrs B’s complaint using the statutory complaint procedure. This was the wrong procedure which is fault. The fault was rectified following advice from the Ombudsman, but it delayed the progression of the investigation which was fault.
  7. The Council created an action plan to make service improvements in response to the review of this case. I am satisfied these service improvements will remedy the faults identified.

Injustice

  1. There is some uncertainty about whether Mr and Mrs B would have accepted a FfA placement if they had attended FfA training and had a better understanding of the scheme. Providing Mr and Mrs B with access support to explore and manage the uncertainty of the placement from the beginning of the placement, may have increased their resilience to changing circumstances. I recommended the Council pay Mr and Mrs B £250 in recognition of the loss of service. This was a symbolic payment to acknowledge the impact of fault on the complainant.
  2. Mr and Mrs B were caused undue stress, inconvenience and frustration by the delay caused by the Council initially using the wrong complaint procedure. I recommended the Council pay £100 to Mr and Mrs B to remedy their time and trouble.
  3. Although the Council disagreed with the findings in paragraphs 45 and 46 it has agreed to pay Mr and Mrs B £350 for the distress they experienced.

Agreed action

  1. Within one month of the final decision, the Council will:
    • Apologise to Mr and Mrs B.
    • Add a copy of the Ombudsman’s final decision to the Council’s case records for Mr and Mrs B.
    • Pay Mr and Mrs B £350 for the distress they experienced.
  2. The Council will provide the Ombudsman with evidence these actions have been completed.

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Final decision

  1. I have completed my investigation and uphold Mr and Mrs B’s complaint. Mr and Mrs B were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy their injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated the Council’s decision for the child to be placed in a FfA placement. This decision was part of court proceedings and is out of the Ombudsman’s jurisdiction.
  2. I have not investigated the Court’s decision to return the child to his birthparents. This is a Court matter and is out of the Ombudsman’s jurisdiction.
  3. I have not investigated alleged inaccuracies in a review report commissioned by the Council. Mr and Mrs B can refer this matter to the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman

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