Summary: Mrs X complained about how the Council removed two foster children from her care following allegations made against her husband by a third foster child. There was no fault in the way the Council removed the children. The Council delayed in dealing with Mrs X’s complaint. It has already offered her £150 which is satisfactory to remedy the injustice this caused. There is fault with the Council’s Independent Fostering Agency complaints policy. During our investigation, the Council amended it and publicised the amended version on its website.

The complaint

1. Mrs X complained the Council:
• removed two foster children from her care 9 months after allegations were made against her husband, despite her following a safety plan the Council had put in place;
• based that removal on a transcript of a recording that was shared by the police and an inaccurate interpretation placed on events by a social worker;
• failed to inform her of the different options open to her which might have meant she could keep the foster children;
• failed to offer her, her husband or her biological children support during the allegation and the removal of the foster children;
• failed to deal with her complaint in a timely manner or appoint someone independent of the events during the complaints process; and
• shared information with different authorities and professionals regarding safeguarding concerns about her when previously it said it did not have any concerns with her care.
2. Mrs X said that the family has experienced financial difficulties and distress when the foster children were removed from their care. She said she and her husband had fostered for many years but the Council will not acknowledge that or the damage its actions has caused them.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. 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

8. I spoke to Mrs X and considered her view of her complaint.
9. I made enquiries of the Council and considered the information it provided. This included the case files for the foster children and Mrs X, Mrs X’s annual assessments for 2018 and 2019 and complaints correspondence
10. I wrote to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and explanations

Child protection

11. Section 47 of the Children Act 1989 states that a local authority has a duty to investigate where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.
12. Following a referral and an initial assessment by a social worker, a multi-agency strategy meeting may be held. If, at the meeting, it is decided the concerns are substantiated and the child is likely to suffer significant harm, the council will convene a child protection conference to decide what action is needed to safeguard the child.
13. Subsequent child protection case conference(s) consider progress made and whether the child protection plan should be maintained, amended or discontinued.

Birmingham Children’s Trust

14. Birmingham Children’s Trust is a body which is independent of the Council. Because it provides children’s services on behalf of the Council, the Ombudsman has the power to look at its actions and hold the Council to account for any fault identified.

The Trust’s complaints policy

15. The Trust has a two stage complaints policy. At Stage 1 the Trust will try to resolve the matter within 20 days. At Stage 2 Trust will investigate the complaint and respond within 25 days.

Local Authority Designated Officer

16. The Local Authority Designated Officer (LADO) is responsible for the management and oversight of allegations against people who work with children.

Independent Reviewing Officer

17. All children who are in care must be appointed an Independent Reviewing Officer (IRO). IROs are there to make sure the best interests of the child are protected.

What happened

18. Mr and Mrs X used to be foster carers. At the time these events took place, Mr and Mrs X fostered three children, H, R and F. Mr and Mrs X and the Council’s plans were for Child H to remain with Mr and Mrs X on a long term placement.
19. On 11 June 2018, Child F contacted the Council’s Children’s Team and made allegations against Mr X, saying he had tried kissing them on two occasions. Child F had approached Mr X about this and recorded the conversation. The recording was passed to the Police who decided to investigate the allegations. Mr X denied the allegations. Child F left the placement.
20. Mr X agreed to leave the family home. Therefore, the Council agreed Children H and R could remain with Mrs X.
21. The Children’s Team made a LADO referral and began a section 47 investigation into H and R’s placement with Mr and Mrs X. The LADO recommended the Children’s Team put a safety plan in place. This specified Mr X would not have any contact with the two children and would not visit the home until further notice. Mr and Mrs X were advised of support groups they could contact.
22. On 12 June 2018, Child H’s social worker visited Mrs X’s home. The notes stated Mrs X discussed the fact Child F had made a similar accusation when staying at a previous foster placement. The notes stated Mrs X thought Child F had made the accusation because they wanted to move to another placement closer to their biological family.
23. A second LADO meeting took place on 21 June but no further substantive actions or decisions were agreed. Further LADO meetings were cancelled because the Police had not progressed the case. Case files show that during this time the Council was waiting for the outcome of the Police investigation into Mr X to determine whether the children should remain in the long-term with Mr and Mrs X.
24. Two case notes for July 2018 record the social worker offered support and provided details of two support groups Mr and Mrs X could access.
25. On 3 January 2019, a meeting was held by the LADO, which was attended by the Fostering Team Manager and the Police (via telephone conferencing). The transcript of the conversation with Mr X and recorded by F was shared. The case notes record this caused those present “considerable concerns”. The Police advised they were referring the case to the Crown Prosecution Service (CPS).
26. On 15 January 2019, the Council held a meeting. The LADO and H and R’s social workers and team manager were present. The notes record the attendees agreed to arrange a planned move for the children to a new placement. This decision was based on a number of factors including the transcript and the view of those present that Mrs X was not a ‘protecting factor’ for the children because she did not believe the accusations against Mr X. The attendees also had concerns about additional events which had occurred concerning Mrs X’s actions towards two of the foster children.
27. The notes record Mrs X’s social worker phoned her following the meeting to provide an update. The case notes indicate Mrs X was very upset and the social worker advised her to contact the two fostering support groups and said she would visit the next day. The following day, Mrs X told the social worker she had been in touch with one of the support groups who was working now on her behalf.
28. Child R’s social worker contacted Child R’s IRO on 16 January to inform her of the plan to end the placement.
29. In February 2019, the Council moved Child R and in March 2019 the Council moved Child H from Mrs X’s care.
30. On 20 February 2019, Mrs X complained to the Trust. She said that despite following the safety plan, the Council had removed H and R. She said the reason for this was the length of time the Police were taking to investigate the allegations against Mr X, which had still not concluded.
31. In May 2019, Mrs X applied for a job and the Council’s Fostering Service was asked to provide her with a reference. The Service informed the prospective employer there was a live investigation involving a third party.
32. The Council responded on 1 May 2019. The officer (Officer B) who carried out the investigation was one of the children’s social workers who had been involved in the events Mrs X had complained about.
33. Officer B did not uphold Mrs X’s complaint. They said they had met with Mrs X, the supervising social worker and H’s social worker in February 2019 and listened to her views on the removal of H and R. Officer B said the children perhaps should have been removed at the time the allegation was made against Mr X whilst the Police carried out their investigation.
34. The complaint response also stated the allegations against Mr X were not the only reason H and R were removed. It said that at a meeting held in January 2019, professionals had raised other concerns about Mrs X’s care of the children.
35. Mrs X responded on 14 June 2019 stating she was unhappy with the Council’s response. Mrs X wanted her complaint looking at by someone independent. The Council agreed verbally that it would consider Mrs X’s complaint at Stage 2 of its complaints process. The Council wrote to Mrs X on 21 June stating it would send her a response within 25 working days.
36. Mrs X heard nothing further and so telephoned the Council on 1 August. The Investigating Officer phoned back on 7 August to say the investigation was not yet complete.
37. Mrs X received nothing further from the Council and on 4 October she complained to the Ombudsman. On 17 October the Council responded to Mrs X’s complaints. An independent officer had considered her complaints. The officer apologised for the delays and offered her £150 in recognition of the time and trouble she had been put to in chasing a response to her complaint.
38. The officer’s findings included the following:
• during the Council’s s47 investigation, a further issue concerning Mr X came to light. This, together with a change in Mrs X’s perceptions of the allegations caused the Council wider concerns about her ability to safeguard the children. This led to the decision to move H and R to new placements;
• it had offered Mrs X suitable support. This included contact from the family’s supervising social worker, requests to the Police for an update about the investigation, information about specialist support and offers to take Mrs X’s biological children out to offer them support;
• it understood she was unhappy with the statements made by the social workers involved in the case but these reflected the significant concerns they had about the placement.
39. The Council did not uphold any of Mrs X’s complaints so she complained to the Ombudsman.

My findings

The Council removed H and R despite Mrs X following a safety plan the Council had put in place

40. Originally, the Council decided that H and R could remain with Mrs X if a safety plan was put in place. Mr and Mrs X followed the plan, the Council carried out visits to the home and was satisfied that both children were safe. Indeed, the case notes indicate the Council was at first still planning for Child H to remain with Mr and Mrs X on a long term placement, with a possible view to adoption.
41. Matters changed in December 2018 when the Council received a copy of the transcript of the conversation Child F had with Mr X. It is unclear why it took so long for the transcript to become available, but that it not something the Council can be held responsible for. Case notes reflect that from that point there was a significant change in the attitude and views of the professionals.
42. Councils must make evidence based decisions. I would expect them to review and, if necessary, revise those decisions when new evidence arises. This is what happened in this case. The Council initially considered the children could be protected with a safety plan. Once it saw a copy of the transcript between Child F and Mr X, it reviewed the situation and the professionals involved made a judgement that they could no longer support the placements. When making this decision they considered a range of information. There was no fault in how the Council made its decision or in its actions.

The Council based that removal on a transcript of a recording and an inaccurate interpretation placed on events by a social worker

43. The Council states it moved the children for a number of reasons, with the transcript being just one of them. However, if the Council had removed the children on the basis of the transcript alone, this would not have been fault. The Council was entitled to consider the evidence available and come to a decision. Mrs X disagrees with the interpretation some of the professionals placed on events. However, that does not mean the interpretation was wrong. The decision to remove the children was made at a LADO meeting attended by the relevant professionals. The decision was unanimous. There was no fault in the way the decision was made to remove the children. There was no fault in the Council’s actions.

The Council failed to inform Mrs X of the different options open to her which might have meant she could keep the foster children

44. Mrs X believes that the Council should have told her that if she separated from her husband, she could keep the children.
45. All parties were aware that the issues arose from allegations involving Mr X. The safety plan involved the removal of Mr X from the family home with initially no contact, and later, supervised contact.
46. Any decision to separate from Mr X was for Mrs X to make. But even if she had done so, I cannot say that this would have meant the Council would have allowed the placements to continue. There was no fault in the Council’s actions.

The Council failed to offer Mr and Mrs X and their biological children support during the allegation and the removal of the foster children

47. The case notes indicate the Council remained in contact with Mrs X and advised both Mr and Mrs X on a number of occasions that they could contact two local support groups. There was no fault in the Council’s actions.

The Council shared information with different authorities and professionals regarding safeguarding concerns about Mrs X

48. The Council was entitled to share information about the ongoing investigation with other relevant officers and the Police. When a prospective employer asked the Council for a reference it informed them there was an ongoing investigation underway.
49. It is not the role of the Ombudsman to comment on what the Council considers appropriate to include in a reference. If Mrs X believes the Council had committed a data breach the Information Commissioner’s Office is better placed to consider this. I will not investigation this any further.

The Council’s complaints handling

50. The Council considered Mrs X’s complaints under its complaints procedures.
51. The Council should normally have completed stage 1 of the complaints process within 20 working days of receiving the complaint.
52. Mrs X initially complained in March 2019. She received the stage 1 response on 1 May 2019, 33 working days later. Although this is longer than the policy allows, the delays are not significant enough to warrant a finding of fault.
53. Mrs X asked for a review of the response on 14 June 2019. The Council responded on 17 October 2019, 83 working days later. This is considerably longer than I would expect or its policy allows.
54. In its Stage 2 response the Council apologised for the significant delays in dealing with Mrs X’s complaint and offered her £150. This is sufficient to remedy any injustice these delays caused her.

The Council’s role as an Independent Fostering Agency

55. During my investigation Mrs X raised a separate complaint. She said she was unhappy with the Council’s response and wanted to complain to the Ombudsman. However, the Council had told her she could not and had to complain to Ofsted instead.
56. During my enquiries, the Council said that it had registered its fostering service as an independent fostering agency (IFA). The IFA provided a fostering service on behalf of the Council but remained independent of it.
57. As a result, the IFA required its own separate complaints policy. This stated that if a complainant remained unhappy with the IFA they could complain to Ofsted.
58. This is incorrect and is fault. The role of Ofsted is to inspect services. It is the role of the Ombudsman to investigate individual complaints.
59. The Council has said this was an error based on a misunderstanding and has reacted promptly to amend its complaints policy and to publicise the amended version on its website. It has provided evidence to demonstrate this.

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Final decision

60. There was no fault in the decision making process taken by the Council to remove foster children from Mrs X’s care. There was fault in the Council’s handling of Mrs X’s complaint. It has already taken steps to remedy the injustice this caused. There was also fault in the complaints policy of an Independent Fostering Agency set up by the Council. The Council put this right during my investigation. As a result, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman