Southampton City Council (19 018 949)

Category : Children's care services > Fostering

Decision : Upheld

Decision date : 19 May 2022

The Ombudsman's final decision:

Summary: Mr and Mrs C complain the Council failed to properly carry out the recommendations proposed at the final stage of the statutory children’s complaints procedure. Mr and Mrs C say the Council has not offered a satisfactory financial remedy for their quantifiable costs and they have suffered additional distress, time and trouble. We have found fault by the Council through delay in the complaint process and in its implementation of the recommendations. We consider the agreed actions of an apology, additional payment and other action provides a suitable remedy.

The complaint

  1. The complainants, whom I shall refer to as Mr and Mrs C, complain the Council failed to properly carry out the recommendations proposed by its Stage 3 Review Panel at the final stage of the statutory children’s complaints procedure. Mr and Mrs C also complain the Council has not offered a satisfactory financial remedy for their quantifiable costs or to reflect their distress and time and trouble.
  2. Mr and Mrs C say because of the Council’s fault they have suffered added distress and time and trouble.

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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 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. 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

  1. I read the papers provided by Mr and Mrs C and discussed the complaint with them. I have considered some information from the Council. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments received before reaching my final decision.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Background and legislation

Fostering and foster care allowances and fees

  1. Children who are looked after by a council may be placed in foster care. A looked after child may be voluntarily accommodated under section 20 of the Children Act 1989 or may the subject of a legal order such as a care order under section 31 of the Children Act. Foster care arrangements may be short or long term. Carers may also foster on an emergency basis or provide respite care. 
  2. Councils have their own foster carers and may also use foster carers from private agencies. They may only place children with approved foster carers. Councils assess and use a specialist fostering panel to approve carers. Foster carers will be approved for a particular number and type/age of child(ren). 
  3. Carers are paid a fostering allowance when looking after children and the amount they receive will depend on the number of children placed with them, the age of the child(ren) and where they live. The rate is determined every April with the government setting a national minimum payment level. Foster carers can also receive one-off payments to meet other costs, for example, holidays and children’s birthdays.   

Child protection

  1. Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare (Children Act 1989, section 47).
  2. Statutory guidance ‘Working Together to safeguard children, 2018’ provides guidance about child protection investigations for all agencies. Local authorities should designate an officer or team of officers to be involved in managing and overseeing allegations against people who work with children. The officer in the Council is the Local Authority Designated Officer (LADO).

Statutory complaint process

  1. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer (IO) and an Independent Person (IP) 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. ‘Getting the Best from Complaints’ is the government guidance which directs councils in how to deal with complaints under the statutory procedure. The guidance contains strict timescales which councils must follow.

What happened

  1. Mr and Mrs C are foster carers for a private fostering agency and foster child A. The Council placed child X with them as an emergency placement in mid-February 2019. Mr and Mrs C were told X was four years old. This was correct but on arrival it was clear X was very small and required clothing for a one year old and had additional needs. X stayed with Mr and Mrs C for five months until the Council removed them at the end of July after they sustained an injury. Mr and Mrs C live in a different County Council area and so it was the LADO from another Council that investigated the circumstances around the injury.
  2. Mr and Mrs C complained to the Council on 9 August 2019 about its decision to remove X and their concerns the decision was affected by a complaint they had made in early July about support which had gone unanswered rather than being in the best interest of X.
  3. The Council acknowledged the complaint on 12 August and provided a response on 21 August at the first stage of the complaint process. This was within the required 20 working days. Mr and Mrs C did not seek to escalate their complaint at this time. Mr and Mrs C further complained to the Council on 19 February 2020 after the outcome of the child protection investigation. They explained they had been too worried to progress their complaint sooner as they were concerned it may affect the outcome of the investigation into X’s injury and their ability to foster or adopt X.
  4. The Council progressed the complaint to stage two on 28 February and appointed the IO and IP. A meeting was scheduled for 20 March. This meeting was postponed due to COVID-19 restrictions with the agreement of all parties. The meeting took place virtually on 29 May and Mr and Mrs C agreed their statement of complaint on 27 July.
  5. The IO submitted the stage two investigation report on 21 December and this was confirmed by the IP on 18 January 2021. The IO investigation found:
  • there had been poor record keeping and communication about funding for additional clothing and equipment and this complaint was partially upheld
  • the complaint about support for X’s health and education needs was not upheld
  • the complaint about social work visits and contact was upheld
  • the complaint about being asked to stop sending text messages had an outcome of no finding
  • the complaint about the outcome of the investigation not being shared with the fostering agency and Mr and Mrs C was partially upheld
  • the complaint about how the Council dealt with Mr and Mrs C’s desire to still be long term foster carers or adopt X was not upheld
  • it was accepted there had been a failure to provide a response to Mr and Mrs C’s initial complaint in July 2019
  1. The stage two investigation report recommended the Council:
      1. send a copy of the strategy meeting meetings to the foster agency
      2. provide an apology for the upheld complaints
      3. address the poor record keeping and poor complaint handling identified
      4. provide an ex gratia payment to reflect the distress caused by the upheld complaints
  2. The Council wrote to Mr and Mrs C accepting the findings of the stage two investigation on 20 January. The Council provided an apology and offered £500.
  3. Getting the Best from Complaints says this process should take a maximum of 65 working days. From the date Mr and Mrs C agreed their statement of complaint to the date the Council issued its adjudication letter took nearly six months. There was some earlier delay due to the impact of COVID-19 restrictions and because the IO suffered a bereavement and this was unavoidable. Nonetheless, I consider the stage two investigation took too long and this is fault.
  4. Mr and Mrs C contacted the Council on 22 January to say they were unhappy about the conduct of the stage 2 investigation and its outcome. Mr and Mrs C provided their complete response on 1 March. The stage three panel took place on 5 and 6 May 2021. The Council says the delay was due to the lack of availability of senior staff. The guidance says the panel should take place within 30 working days of the request. This delay constitutes further fault.
  5. The Panel found:
  • it was the Councill’s responsibility to provide resources and equipment appropriate to a child’s needs or make explicit to foster carers where that responsibility lay and fully upheld this element of the complaint which the stage 2 investigation had partly upheld
  • in relation to support for X’s health and educational needs there was a lack of social worker activity and joined up working and upheld this element of the complaint which the stage 2 investigation had not upheld
  • it agreed with the stage 2 investigation finding that the complaint about social work visits and contact was upheld
  • the complaint about being asked to stop sending text messages was upheld where the stage 2 investigation had made no finding
  • there had been an unfair investigation process and a failure to provide an outcome in a timely way and upheld this element of the complaint which the stage 2 investigation had partly upheld
  • the Council had not treated Mr and Mrs C well and unfairly excluded them in their wish to long-term foster or adopt X and upheld this element of the complaint which the stage 2 investigation had not upheld
  • the Council should reinvestigate Mr and Mrs C’s original complaint from July 2019 and agreed with the stage 2 investigation finding that this element of the complaint was upheld
  1. The Panel expressed serious concerns in its report dated 21 May 2020 and made ten recommendations:
      1. An urgent review by an independent social worker to explore the possibility of Mr and Mrs C being considered as adopters or alternative long term foster carers of X.
      2. The Council to follow up to:
  • ensure Mr and Mrs C received recompense for their out of pocket expenses at the earliest opportunity
  • undertake periodic ‘grandparent’ audit of LADO activity with the LADO and an audit of this case to look at the outcome to be assured that all the requirements are settled and identify any gaps and learning from the case which will hopefully provide some clarity for X in later life
  • undertake a review of agency decision maker (ADM) decisions and clarify these in the best interests of X and why Mr and Mrs C could not be considered to adopt him given they were cleared of any wrongdoing
  • arrange for a letter and photograph of X to be addressed to Mr and Mrs C’s foster child A
  • arrange a meeting with Mr and Mrs C at the earliest convenience
      1. An urgent decision to compensate Mr and Mrs C for their time and trouble and loss of earnings.
      2. To take action on the original complaint at the earliest opportunity.
      3. Mr and Mrs C to write their own report which was to be placed on X’s record to explain their view of events with an opportunity to say what they would like to say to X if they could not see him in the future.
      4. A clear statement in X’s records that Mr and Mrs C were completely exonerated of any wrongdoing.
      5. The outdated policy ‘Allegations/Complaints Against Carers to be reviewed and updated by September 2021.
      6. A review to understand the lack of joined up thinking between the relevant teams with an action plan for remedies to be put in place by September 2021.
      7. This Review document to be raised with the Chief Executive and a letter from the Chief Executive to Mr and Mrs C with an unreserved formal apology.
      8. The Chief Executive to have oversight of a review of this case to ensure practices are corrected and improved.
  1. The Council wrote to Mr and Mrs C to outline the actions it was to take in relation to the Panel’s recommendations on 28 May. This stated:
  • It would commission a full audit of the case that would cover: the quality of practice, the actions of managers in this case, ADM decision making, and Mr and Mrs C‘s concerns.
  • The audit would be completed by 30 June 2021 with the findings provided to Mr and Mrs C and the Council’s Chief Executive would be briefed on the outcome.
  • If the audit confirmed the faults identified by the panel the Council’s Chief Executive would provide an apology.
  • Mr and Mrs C’s file to be updated after the audit and they would be given the opportunity, if appropriate, to place a document containing their views on the file.
  • The Council’s Quality Assurance Unit would liaise with the LADO function of the relevant County Council.
  • The compensation amount to be increased to £1000 for Mr and Mrs C’s time and trouble and once the amount assessed by Mr and Mrs C for lost earnings and equipment purchases was confirmed it would issue payment by 10 June 2021.
  • It would not be possible to share a photograph of X with Mr and Mrs C as this would not be normal practice.
  • The named officer would contact Mr and Mrs C as promised.
  • The policy documentation relevant to the case would be reviewed in the timescales stipulated by the panel.
  • There would be a review with the managers involved and the Complaints Resolution Team Manager regarding the complaint process ahead of the stage 3 panel.
  • X was settled in his placement and in school and the Council did not consider it was in his best interests to endorse any plan for Mr and Mrs C to resume their care of him. The Council accepted this was not what the panel recommended and would be upsetting to Mr and Mrs C but was satisfied it was the best course of action for X.
  1. The Council wrote to Mr and Mrs C in mid-June to explain it had commissioned an independent auditor but they were not available to start work until July. The Council apologised for the delay implementing this element of the Panel’s recommendations.
  2. The Council offered a meeting with a different officer on 16 July as the officer named in the Panel’s recommendation had left the Council. Mr and Mrs C declined this meeting as they say so much time had passed and the person nominated had no part in the case and would not have been able to provide the clarity and understanding they were seeking about what had happened and why.
  3. The independent audit of practice was completed in September. The Council has not provided Mr and Mrs C with a copy of this report or shared the detailed findings. The audit noted there were positive differences in X’s presentation and the pace of their progress in the care of the current foster carers had informed the decision for X to remain in their care after the conclusion of the child protection investigation. The report found the reasons for this decision had not been properly explained to Mr and Mrs C during their complaint. It also found that the reasons their offer to become potential adopters not being taken forward due to the decision in October 2019 to proceed with long-term fostering for X was also not properly explained to Mr and Mrs C. This decision had been reviewed in February 2020 and confirmed at a statutory review in August 2020.
  4. The Council wrote to Mr and Mrs C on 13 October to confirm the following action had been completed:
  • Commissioned a review into the quality of social work practice
  • Investigated the outstanding complaint and apologised for the poor communication
  • Offered a meeting with the Deputy Director as the officer named in the Panel recommendation had left the Council
  • Offered a financial settlement
  • Liaised with LADO
  • Recorded a summary on X’s file, including the outcome of the investigation
  • Briefed the Chief Executive
  1. The Council has not been able to provide the Ombudsman with a copy of its financial settlement letter which we understand was dated 6 September 2021. However, the Council has confirmed it offered Mr and Mrs C £650 for the equipment purchased, £3,668 equivalent to 28 days’ notice and a further £3,668 for the distress and inconvenience caused totalling £7,986. Mr and Mrs C declined this offer.
  2. The Council confirmed the review and update of the policy ‘Allegations/Complaints Against Carers’ due by September 2021 remained outstanding in November 2021 but has now been completed.
  3. The Council has confirmed that the Panel recommendation that Mr and Mrs C be allowed to write their own report to be placed on X’s record remains outstanding. The Council has suggested this should be discussed with Mr and Mrs C once my investigation has ended.

Analysis

  1. The Council decided it needed to take steps to safeguard X. This is a matter of professional judgement and it is not for the Ombudsman to question the merits of a decision made without fault.
  2. If a council has investigated something under the statutory procedure for complaints about children’s services, we would not normally re-investigate it unless we consider that investigation was flawed. I have not re-investigated the events leading to Mr and Mrs C’s complaint but in view of the delays in the complaint process I have decided to investigate both this process and the Council’s implementation of the Stage 3 Review Panel recommendations.
  3. As set out above, the Council failed to meet the timescales for dealing with complaints about children’s services which is fault. Because of delay by the Council, I am satisfied Mr and Mrs C faced additional uncertainty and were prevented from moving on from what was undoubtedly a distressing time in their lives.
  4. The Council did not implement some of the Panel’s recommendations in a timely way and has not implemented others without providing cogent reasons to Mr and Mrs C at the time.
  5. In particular, I asked the Council about the evidence it relied on to reach its decision the urgent review by an independent social worker recommended by the Panel was not in X’s best interests. The Council’s letter to Mr and Mrs C simply stated X was currently settled in his placement and in school. The Panel had noted any such review would need to have regard to the strength of X’s attachment to the current foster carer but weight should also be given to X’s views and what Mr and Mrs C were able to offer.
  6. The Council says it reviewed the care planning information and case records following the conclusion of the complaints process which provided evidence X was stable in the current placement. I note the passage of time would have been a factor here given the time taken to conclude the complaint process. There is no evidence of weighing other factors in reaching the decision it was not in X’s best interests to complete an independent review. I also note the information the Council relied on to reach that decision would have been available during the Panel’s consideration of the complaint and I would expect the Council to have made this case at the time to avoid unreasonably raising Mr and Mrs C’s expectations.
  7. It is clear this was a key element of the Panel’s consideration and of significant importance as an outcome to Mr and Mrs C. I would expect the Council to have taken time and care in providing a proper explanation to Mr and Mrs C about its decision not to implement this element of the Panel’s recommendation as it was considered not to be in X’s best interests. The Council’s failure to do so is fault.
  8. I also asked the Council to provide its reasons for its decision not to provide a letter and photograph on the grounds this would not be normal practice as it had advised the Panel this would not be a difficult exercise and would be beneficial. The Council says it provided incorrect information about this to the Panel and has apologised but maintains it would not be usual practice. This is fault and particularly poor practice given the information was to help Mr and Mrs C’s foster child A process what had happened.
  9. I note the agreed meeting with a named Council officer recommended by the Panel did not take place at the earliest opportunity or within two weeks of the Council’s adjudication letter of 28 May as agreed. The relevant officer subsequently left the Council. This is regrettable as such a meeting with the officer involved in the process may have helped both with the Council’s communication and implementation of the Panel’s recommendations.
  10. It is not clear how the Council has assessed the financial remedy recommended by the Panel. The Council’s letter of 28 May stated it would increase the time and trouble payment offered from £500 to £1,000 and would provide an amount for lost earnings and equipment purchases once it had received an assessment by Mr and Mrs C. The Council’s subsequent financial remedy is not until September and does not provide a separate amount of £1,000 for the time and trouble payment or say how it arrived at the figure for equipment of £650 which it says is an estimate only. The Council also offered the amount of £3,668 in lieu of 28 days’ notice and a further amount of £3,668 for distress and inconvenience. I note the Panel recommended the notice period should be paid without further delay and a further amount to reflect five months loss of income. There is no reference to loss of income in the Council’s offer. The Council accept there was also a delay in this action. This is fault. The Council has now provided its reasons for not recompensing Mr and Mrs C for the full five month period to the Ombudsman. This reasoning should be explained to Mr and Mrs C.
  11. I do not consider there is a good reason why the Panel recommendation that Mr and Mrs C be allowed to write their own report to be placed on X’s record to explain their view of events with an opportunity to say what they would like to say to X if they could not see him should have been delayed pending the outcome of my investigation. This is fault.

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Agreed action

  1. The Council will within six weeks of my final decision:
      1. Apologise to Mr and Mrs C for the delays in the complaint process and the faults identified in my statement and pay them £250 in recognition of the added uncertainty and time and trouble;
      2. Consider what information can be appropriately shared with Mr and Mrs C and their foster child A and the best method to do this in lieu of the expected letter and photograph from X and in discussion with Mr and Mrs C whether other support around this particularly for A may be appropriate;
      3. Provide a breakdown of the out of pocket expenses the Council is willing to pay based on the information supplied by Mr and Mrs C and the rationale for any estimate that has been used;
      4. Provide the Council’s reasoning of how it has approached the Panel recommendation about their loss of income in its offer;
      5. Provide an updated financial offer to Mr and Mrs C which should include £250 for their additional time and trouble as set out above, the originally agreed £1,000 for their time and trouble, £3,668 for the 28 day notice period, £3,668 the equivalent of a further month’s notice for the distress caused plus the reconsidered amount of £920 for out of pocket expenses;
      6. Arrange for Mr and Mrs C to write their own report to be placed on X’s record to explain their view of events and say what they would like to say to X within the context of providing an appropriate record for X;
      7. Confirm the outcome of the investigation and how this has been recorded to Mr and Mrs C;
      8. Offer to share the detailed findings of the independent audit with Mr and Mrs C if they would find this helpful; and
      9. Produce a strategy to ensure it meets the timescales for statutory children’s complaints, in particular organising and holding the stage three panel within 30 days.

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Final decision

  1. I have completed my investigation as I have found fault but consider the agreed actions above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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