Summary: Ms D complains about the way the Council has dealt with her approval as a foster carer. She considers the Council wrongly downgraded her approval and did not give her adequate notice or reasons for the decision. This meant she lost what was effectively her income. She says the Council provided inaccurate information in a reference which meant she did not get a job she had applied for. There was fault by the Council that caused injustice to Ms D. The Council should make a payment to Ms D in recognition of the distress caused to her.

The complaint

1. Ms D complains about the way the Council has dealt with her approval as a foster carer. She considers the Council wrongly downgraded her approval and did not give her adequate notice or reasons for the decision. This meant she lost what was effectively her income. She says the Council provided inaccurate information in a reference which meant she did not get a job she had applied for.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered the complaint and documents provided by Ms D. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms D and the Council and considered their comments.
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

Summary of what happened

8. Ms D had been a foster carer for the Council since 2012. She was approved as a Band 4 foster carer which meant she had to be available at all times to foster a child. She received a monthly payment of just under £1700 a month whether a child was placed with her or not.
9. Child X had been living with Ms D for sometime and in in spring 2017 Ms D and X moved a significant distance away from the Council’s area. In July 2017 Ms D complained to the Council about a lack of support since she moved. X left Ms D’s care at the end of July 2017.
10. The Council considered Ms D’s registration as a foster carer at a meeting of the fostering panel in October 2017. The panel recommended the type of placement she was approved for was reduced. The decision maker confirmed that decision.
11. Ms D disagreed with this decision and asked for it to be considered by the Independent Reviewing Mechanism (IRM). She also wanted her complaint to be considered by the Council at stage 2 of the complaint process. The Council would not so she complained to us. We recommended the Council should consider the complaint at stage 2 which the Council did.
12. As the complaint process was starting in early 2018 the IRM considered Ms D’s case. It made recommendations for her registration. It unanimously recommended to increase the type of fostering placements Ms D was considered suitable for. This was a recommendation and the final decision rested with the Council. It decided not to follow the IRM recommendations and to reduce the type of fostering Ms D could undertake.
13. Ms D complained further and these were incorporated into the stage 2 investigation. The final stage 2 report was published in January 2019. The Council responded but Ms D was not satisfied and asked for a review panel hearing. That happened in April and the Council responded in March and June to Ms D. Ms D renewed her complaint with the Ombudsman.

Statutory complaint process

14. 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.
15. 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.
16. 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.
17. As Ms D’s complaint has, for the most part, been considered under this statutory process I am considering whether that has been done properly with reasoned conclusions reached on the evidence and whether the Council’s has responded appropriately.

Findings of the independent investigation

Ms D’s move away from the Council’s area

18. The independent investigator concluded there was no procedure in place for when a foster carer intended to move away from the Council’s area. The Council had known of Ms D’s intention to move but there was no ‘looked after child’ review to assess the implications for this on X. The investigator noted “that all concerned drifted into this significant change of circumstances in good faith with little thought of X’s perspective or how the placement was to be properly supported”. This was at a time when the relationship between Ms D and X was experiencing extreme difficulties. He concluded that the Council made attempts to cope with the resulting difficulties but the lack of planning contributed to the problems that arose in the placement. This included a failure to provide the agreed respite for Ms D and X.

Feedback and review during the placement of X

19. The investigator concluded there were significant failings by the Council in its record keeping and feedback to Ms D while she was caring for X. It could not show that it had shared its concerns about Ms D’s practice as a foster carer over a number of years with her or that it had taken any remedial action. He noted that the decision that she could no longer provide Band 4 care was significantly influenced by historic events.

Delivering X’s care plan

20. Ms D had complained that the Council had failed to deliver various aspects of X’s care plan. Examples given included the provision of a passport, referral to Child and Mental Health Support services and life-story work. The investigator concluded that some limited elements of X’s care plan had not been delivered. He concluded that the lack of provision of services would have contributed to Ms D’s difficulties in caring for X.

The decision on Ms D’s fostering status

21. The Council first proposed to change the nature of Ms D’s approval as a foster carer at fostering panel meeting in October 2017. The Council confirmed this decision but did not provide any further reasoning or explanation of the implications for Ms B’s Band 4 approval. Ms D disagreed with this decision so asked for it to be considered by the IRM.
22. The IRM is an independent body which considers a foster carer’s suitability to foster. A panel reviews the decision on the foster carer’s approval. The IRM considers all the evidence anew. It questions both the Council and the foster carers and takes its own independent legal advice if necessary. The IRM makes a fresh decision about the foster carer’s suitability to foster and makes a recommendation to the Council. The Council must consider, but is not bound by, the IRM recommendation.
23. The IRM met in March 2018 and unanimously decided that Ms D should be able to continue fostering at her previous level. This was considered by the Council but it decided that Ms D’s approval should be limited. This meant that Ms D would no longer receive the monthly allowance and it stopped on the day of the decision in early April 2018.
24. The independent investigator commented on the Council’s letter giving the decision. It partly relied on information from the fostering panel held in October 2017 and referred to comments in the IRM minutes. The letter made no direct reference to the IRM’s recommendations regarding Ms D’s approval status as a foster carer which, had it been accepted, would have met the terms and conditions of a Band 4 carer. He said the Council had not provided an adequate explanation of why her approval had been downgraded – a detailed explanation of the reasons for the decision should have been provided.

Employment reference

25. In May 2018 the Council provided a reference in connection with a job application Ms D had made for a position in a school. As a result of the reference the school decided not to proceed with the offer of the position to Ms D.
26. The investigator said the Council’s responses were ambiguous. It referred to concerns about Ms D but it was not made clear that she had not been subject to any disciplinary or child protection procedure. And it failed to clearly answer questions or set out objectively both the positive and negative aspects of Ms D’s performance as a foster carer in any detail. He noted the Council had not been able to give him any guidance provided to staff on how they should complete a reference for a foster carer. And that there had not been any advice from legal or human resources professional who might have ensured a more balanced and full reference was provided.

Notification of the loss of payment

27. Payment to Ms D stopped immediately following the decision in April 2018. The investigator found that there was no guidance or statutory duties that required the Council to give notice to Ms D. But, he went on to say, that given the circumstances here where the Band D payment was Ms D’s only income the Council should have had some discussion with her as to how best to implement the decision to minimise hardship.

Training

28. The foster panel that met in October 2018 recommended that Ms D undergo training to see if she was able to regain her confidence and learn from recent experience. The investigator found that no training package had been formulated for her so upheld the complaint.

Analysis

29. I am satisfied that the independent investigation was sound and reached reasoned and robust conclusions. The complaint was then considered by a review panel and the findings of the review panel considered by the service director.
30. The key point that is left for me to consider is whether there has been a sufficient response and remedy to Ms D by the Council. The Council has implemented various service improvements as a result of the shortcomings identified as part of the consideration of the complaint.
31. It paid Ms D an additional month’s foster allowance in recognition of the lack of notice that was given of the decision to stop the Band 4 registration. I consider that to be fair.
32. The independent investigator concluded the Council failed to give adequate reasons for its decision to downgrade Ms D’s fostering approval in the light of the IRM decision. The review panel also concluded there had not been a proper explanation of the reasons for the decision not to follow the IRM recommendation.
33. In responding to the review panel findings the Council said that the letter to Ms D did provide an adequate explanation. I do not consider this is an adequate response. I consider that both the independent investigator and the review panel had reached sound conclusions with reasons given for the view taken and the Council’s response on this point does not address the concerns raised.
34. Although I consider the response by the Council to the findings on this point is inadequate I cannot say the foster banding decision itself was flawed. The Council did not have to follow the IRM’s recommendations. The failing here is to provide reasons for the decision to go against those recommendations. I have considered what an appropriate remedy for this might be. I cannot say at what level Ms D should be approved for foster care and, after the passage of so much time, the only possible meaningful outcome is for her to be reassessed. But I consider the Council should make a payment to her to recognise the distress to her from the failure to provide a proper explanation of the reasons for its decision.
35. The other key issue was the reference. I outline the independent investigator’s concerns in paragraph 26 above. The review panel said that the replies in the reference were “potentially misleading and do not provide a balanced picture as they do not record the outcome of strategy meetings as being of no further action was taken”. I therefore consider that the reference was flawed.
36. In response to the review panel findings the Council said it would provide advice and guidance to officers in completing references. It did not consider whether any other remedy was needed for Ms D. I do not consider that I can say that had the information in the reference been properly considered the outcome would have been different. It could be that the school would still have not proceeded with an offer of employment. I therefore consider the only remedy here should be a payment to recognise the distress caused to Ms B by the Council’s actions in this.
37. If Ms D considers that this is not an adequate remedy it would be open to her to take legal advice with a view to taking proceedings against the Council.
38. The investigation also identified failings in the support and oversight of the placement. That caused an injustice to Ms D and contributed to the Council’s decision in respect of her fostering approval. As I say above, I do not consider that I can revisit the decision on fostering and the only way forward is for Ms D to be reassessed. But again I consider the Council should make a payment to reflect the distress caused to Ms B.
39. I agree with the independent investigators conclusions about training but I consider the October 2017 fostering panel decision and resulting approval decision was rather overtaken by the referral to the IRM. I do not, therefore, consider this caused a specific injustice to Ms D and is all part and parcel of the question about the fostering approval

Agreed action

40. The Council will pay Ms B £750 in recognition of the distress caused to her from the failings identified above. It will do so within one month of the final decision.

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Final decision

41. There was fault by the Council that caused injustice to Ms D. The Council should make a payment to Ms D in recognition of the distress caused to her.

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Investigator's decision on behalf of the Ombudsman