The Ombudsman's final decision:
Summary: Miss Y complained about the way the Council dealt with issues relating to her role as a foster carer. The Ombudsman has found fault by the Council in the time taken to complete its complaint handling process, causing injustice. The Council has agreed to remedy this by making a payment to reflect the time and trouble this fault caused Miss Y.
- The complainant, who I am calling Miss Y, complained about the way the Council dealt with issues concerning her role as a foster carer. She said:
- There was a delay by the Council in completing Stage Three of the complaint process and arranging a review panel hearing;
- The review panel hearing was unfair. The panel did not consider her response to the Independent Investigating Officer’s report;
- She has not received the enhanced payments to which she was entitled; and
- The Council wrongly removed her fostering registration. It told her she must re-apply for approval if she wanted to continue as a foster carer for the Council.
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)
- 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 spoke to Miss Y, made enquiries of the Council and read the information Miss Y and the Council provided about the complaint.
- I invited Miss Y and the Council to comment on a draft version of this decision. I considered their responses before making a final decision.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
What I found
What should have happened – relevant law and guidance
Council’s complaint procedure
- The Council’s complaints policy confirms complaints about children’s social care are investigated under The Children Act 1989 Representations Procedure (England) Regulations 2006 statutory complaints procedure. This procedure has three stages:
- Stage One - Local Resolution
- Stage Two – Investigation
- Stage Three – Review and Panel
- Under the regulations, the timescales for this procedure are:
- 10 days at Stage One (with a further 10 days for more complex complaints or additional time if an advocate is required)
- 25 days at Stage Two (with a maximum extension to 65 days)
- 20 days for the complainant to request a Review Panel
- 30 days to convene and hold the Review Panel at Stage Three
- 5 days for the panel to issue its findings
- 15 days for the local authority to respond to the findings.
- The statutory guidance “Getting the best from complaints” says:
- Where a complaint is accepted at stage one the complainant is entitled to pursue their complaint further through the procedure.
- If a complaint has entered stage one the local authority is obliged to ensure the complaint proceeds to stages two and three if the complainant requests this.
- Where the complaint is not resolved at stage one the complainant has the right to request consideration of the complaint at stage two. Stage two commences either when the complainant requests it or where the complainant and the local authority have agreed that stage one is not appropriate.
- The complaints manager should arrange for a full and considered investigation of the complaint to take place without delay.
- The Council’s complaint process says:
- At stage one, the complaint will be investigated by a senior manager within Children’s Social Services and a written response provided usually within 10 working days.
- If the complainant does not feel the complaint has been fully addressed, they can ask for it to be escalated to stage two. At stage two, children’s social services complaints are investigated by an Independent Investigator and an Independent Person from outside the Council. An independent investigation usually takes between 25 and 65 working days.
- If the complainant remains unhappy after they receive the adjudication, they can ask for their complaint to be escalated to stage three. This is a review panel carried out by an independent Chair which the complainant will be invited to attend and take part in.
- Miss Y is a foster carer for the Council. In 2010 two children were placed in her care. One of the children moved to a different placement in 2014 but the other child, who I am calling Z, remained in Miss Y’s care until the placement ended in 2020.
- In February 2018, Miss Y complained to the Council about the way it dealt with a number of issues relating to her role as foster carer. These included complaints it had failed to support her in response to Z’s behaviour and failed to provide respite care or enhanced payments.
- Her complaint was considered under the children’s statutory complaints process. The Council provided its stage one response in March 2018. Miss Y was not satisfied with the response. In August 2018 she asked for the complaint to be escalated to stage two.
- An independent investigator was appointed in January 2019. The investigator noted the complaint included Children Act complaints made by both Miss Y and Z, and Miss Y’s corporate complaints about payments and fostering registration. The Council confirmed all the complaints should be addressed by the investigation team, including Miss Y’s complaints the Council:
- failed to pay her a continuous enhanced fostering payment from the start of the placement (complaint nine); and
- unfairly prejudiced her by restricting her placement to just Z until she reached 18, as well as having to undergo another fostering panel after Z’s placement ended (complaint eleven).
- On 11 July 2019, Miss Y told the investigating officer she had recently been paid £11,000 in backdated enhanced payments by the Council as a “goodwill gesture”.
- The investigating officer completed his investigation and issued his report in August 2019 with his findings on all Miss Y and Z’s complaints. He did not uphold Miss Y’s complaints nine and eleven, and found:
- the evidence available did not demonstrate Miss Y should have received a “continuous” enhanced payment from the beginning of Z’s placement or any time thereafter.
- the evidence available did not confirm the Council unfairly prejudiced Miss Y by restricting her placement to just Z until she reached 18.
- The Council considered the investigating officer and independent person’s reports and wrote to Miss Y in September 2019 with its adjudication response to her complaints. It agreed with the investigating officer’s findings on her complaints nine and eleven and did not uphold these complaints. It said it would carry out an internal investigation to include a review of the fostering service role and recommendations concerning the continuing registration of Miss Y as a foster carer.
- The internal investigation was completed in October 2019. It advised Miss Y should be presented to the Fostering Panel at the end of November 2019. Miss Y was referred to the panel in December 2019 for a three-yearly review. The panel recommended she be approved as a foster carer for Z until her 18th birthday. The Council says Miss Y told the panel she understood she was approved to care for Z only and did not plan to continue fostering after Z’s placement ended.
- In December 2019 Miss Y asked the Council to escalate her complaint to stage three and arrange a review panel hearing. Her request was not progressed.
- Z’s placement with Miss Y ended in July 2020. The Council says Miss Y told it she now wanted to continue fostering for the Council.
- In September 2020 Miss Y complained to us about the Council’s failure to hold the review panel hearing. The Council told us her request had not been passed on when the previous complaints manager left. It apologised for this and confirmed it would now arrange a review panel hearing.
- In October 2020 the Council told Miss Y her approval as a foster carer had now ceased as Z’s placement with her had ended. It said she would need to re-apply to the recruitment team if she wanted to continue to foster.
- The review panel hearing took place on 10 November 2020. The panel issued its findings on 12 November 2020. Its finding on complaint nine was there was no evidence to support the contention Z’s presentation over the period of the placement justified a continuous enhanced payment. It recommended the complaint was not upheld.
- In its finding on complaint eleven, the panel said it took the view that rather than being prejudiced against Miss Y the Council had been remarkably indulgent in their dealings with her. It recommended the complaint was not upheld.
- The Council wrote to Miss Y on 26 November 2020 with its response to the review panel’s findings. It agreed with the panel’s recommendations not to uphold complaints nine and eleven.
- Miss Y submitted a further complaint to us in December 2020. She said:
- The investigation at stage three had been unfair. The panel had not considered the information she had provided in response to slanderous comments in the stage two report;
- She had not received all the payments to which she was entitled as a foster carer; and
- The Council had told her she will have to re-apply if she wants to continue as a foster carer.
- In February 2021 one of the Council officer’s contacted Miss Y. The officer told her since their previous communications, they had been given additional guidance and instructions, apologised for any distress caused and said the fostering service would now:
- update her status on its system as a foster carer;
- re-allocate her to a social worker who would complete an annual review; and
- complete the annual review process including a home visit by the fostering review officer which would determine their next steps.
- The Council says it is still waiting to complete the annual review and home visit. It has not been able to progress these because Miss Y has said she will not engage with the process until her complaint is resolved.
Analysis – was there fault by the Council causing injustice?
The Council’s complaints handling process
- The information shows there were delays by the Council in completing stages two and three of the complaints procedure. It did not meet the timescales set out in the regulations. The stage two investigation took some 12 months, from Miss Y’s request in August 2018 to the issue of the report in August 2019, instead of a maximum of 65 days. The Council then failed to act on her request in December 2019 for a review panel hearing, which should have been convened within 30 days of her request. It did not do this until she contacted us in October 2020. I consider these delays were fault by the Council causing Miss Y avoidable time and trouble.
- I have reviewed the investigating officer’s investigation and the way the review panel hearing was conducted. The information I have seen shows:
- The investigating officer’s investigation was supervised by an independent person as required under the statutory complaints procedure. His report of August 2019 gives details of the witnesses he interviewed and the files and information he considered and the evidence on which he based his findings.
- Before the hearing, the review panel members were provided with all the stage one and two complaint documents, the investigating officer and independent person’s reports, and Miss Y’s submission in response to the investigating officer’s report.
- The panel’s chair’s letter to the Council of 12 November 2020 refers to Miss Y’s submission. It confirms Miss Y and her supporter attended the hearing (which was conducted virtually) and she was invited to direct the panel’s direction to relevant parts of her submission. The Council’s officer and the investigating team were asked for final comments before Miss Y and her supporter made their closing comments.
- The chair’s letter records Miss Y directing the panel to her report and chronology, a summary of the relevant evidence given and considered by the panel and the reasons for their findings.
- It is not our role to re-investigate complaints which have been properly investigated under the statutory complaints procedure. Based on the evidence seen so far, my view is the investigation was robust and based on significant evidence and the panel hearing review was conducted appropriately. I do not consider there is anything to suggest the investigation or conduct of the review panel hearing was flawed or carried out incorrectly.
- Apart from the delays referred to in paragraph 29 above, I do not find fault in the way the Council investigated Miss Y’s complaints under the statutory complaints procedure.
- Miss Y’s complaint the Council failed to pay enhanced payments to which she was entitled has been investigated and reviewed under the statutory complaints procedure. The complaint was not upheld by the investigating officer and the review panel and for the reasons explained in paragraph 31, I will not re-investigate this issue. I do not find fault by the Council in its decision not to uphold this complaint.
The removal of Miss Y’s fostering registration
- Miss Y’s complaint the Council unfairly prejudiced her by restricting her placement to just Z until she reached 18 was not upheld by the investigating officer and the review panel. For the reasons explained in paragraph 31, I will not re-investigate this issue. I do not find fault by the Council in its decision not to uphold this complaint.
- The Council told Miss Y in February 2021 her initial de-registration as a foster carer following the end of Z’s placement in July 2020 was an error. It confirmed she was still registered as a foster carer and set out the process for completing her annual review.
- On this basis, I consider it was fault by the Council to tell Miss Y initially she was no longer approved as a foster carer. But I do not consider this caused Miss Y any injustice because the Council corrected the error in February 2021. The Council says Miss Y told her social worker in October 2020 she would not engage with the process until her complaint had been resolved. In my view it is not the Council’s fault Miss Y’s request to continue as a foster carer has not progressed.
- To remedy the injustice caused by the above faults, and within four weeks from the date of our final decision, the Council has agreed to:
- Apologise to Miss Y for the delay in completing stages two and three of the statutory complaints procedure, and
- Pay Miss Y £150 to reflect the time and trouble caused by the delay, including bringing her complaint about the delay to us. This figure is a symbolic amount based on the Ombudsman’s published Guidance on Remedies.
- I have found fault by the Council causing Miss Y injustice. I have completed my investigation on the basis the Council will take the above action as a suitable way of remedying the injustice.
Investigator's decision on behalf of the Ombudsman