The Ombudsman's final decision:
Summary: Ms X complains about the way the Council dealt with her as a foster carer eventually causing her to resign. We have found fault by the Council as it delayed starting the statutory stage 2 complaint investigation into her concerns. But this has not caused a significant injustice to Ms X so we have completed our investigation.
- The complainant whom I shall refer to as Ms X complains about the way the Council dealt with her as a foster carer eventually causing her to resign. In particular Ms X complains:
- The Council delayed taking her foster child’s case to a panel to assess whether the child needed advanced status foster caring. And she needed to repeatedly complain about the decision not to award that status.
- The social worker’s assessment report presented to the panel lacked quality.
- The Council failed to recognise her as an advanced foster carer for the foster child. And expected her to attend advanced level foster carer training to meet the foster child needs despite not recognising the child as advanced level.
- The Council expected her to receive standard foster carer fees while attending the advanced level training course when other foster carers attending received advanced levels fees.
- The Council did not offer her foster child placements for seven months affecting her income.
- The Council has taken two years to consider her complaints.
- The Council appointed an employee as the Investigating Officer for her corporate complaint, so they were not independent.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
- there is not enough evidence of fault to justify investigating, or
- any fault has not caused injustice to the person who complained, or
- any injustice is not significant enough to justify our involvement, or
- we could not add to any previous investigation by the organisation, or
- further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6))
- 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 have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have taken account of three complaints Ms X made to us during 2019 about the Council’s actions which are referred to within the decision statement.
- Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
- 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.
What I found
Relevant legislation and guidance
- Section 26(3) of the Children Act 1989 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 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 panel review hearing by a panel of independent people.
- There are timescales for considering social care complaints. Getting the Best from Complaints 2006 provides detailed guidance on how councils should conduct investigations. A council has the maximum of 65 working days to complete the Stage two investigation. If the Council has investigated something under this procedure, we would not normally re-investigate it unless we consider the investigation was flawed. But we may look at whether the Council properly considered the findings and recommendations of the independent investigation.
Background to the complaint
- This section does not include everything that has happened but is to provide context to the complaints made by Ms X.
- Ms X was a foster carer approved by the Council for many years and cared for one child on a long-term placement (Child B). In February 2019 the Council awarded Ms X advanced level foster carer status for six months. Ms X asked the Council to reassess Child B’s status from accredited to advanced level. If approved Ms X would receive more foster carer fees. The Council declined Ms X’s request and she complained in March 2019. The Council considered the complaint a ‘possible one’ as a senior officer was actively dealt with the matter.
- In April 2019 the Council asked Ms X to be a temporary 1:1 carer for Child B at accredited level. The Council asked Ms X to attend a 12-day training course and three advanced level training days to meet Child B’s needs. Ms X attended the 12-day course for two days before leaving it.
- The Council’s Best Practice and Scrutiny Forum (Forum) considered Ms X’s request to award Child B advanced level in June 2019. Ms X submitted a document in support. The Forum decided Child B should stay as accredited. Ms X complained about the decision and time taken for the case to go to the Forum. The Council progressed the complaint to stage 2 in June 2019.
- The Council carried out Ms X’s annual foster carer review in July 2019. Officers raised concerns and referred to an incident between Ms X and Child B. Officers visited Ms X to try to resolve matters but still considered Child B accredited status. The Foster Carers Framework Panel (Panel) deferred deciding on Ms X’s status wanting her to reflect on learning from the incident. In October 2019 the Panel agreed to allow Ms X advanced status for six months providing she completed some training.
- The Council told Ms X in November 2019 she did not need to attend training as she had attended another course, but it still had concerns about her as a foster carer. Ms X considered the Council was not paying her for the advanced work she felt Child B needed. Ms X said she may give notice on the placement unless the Council agreed to her request for increased payments. Ms X complained about the Panel’s decision in December 2019. The Council rejected the complaint. It considered the issue more properly addressed through the Panel.
Ms X’s complaint through the Children’s Complaints Procedure
Stage 2 complaint
- The Council considered Ms X’s June 2019 complaint through the children’s complaints procedure and appointed an Investigation Officer (IO) and Independent Person (IP). The IO and IP met with Ms X in October 2019 to discuss her complaints. Ms X asked to include extra complaints. The IP could not continue, so the Council appointed a replacement. Ms X asked to add a further complaint point which the Council agreed to and set the start of the investigation as 5 November 2019.
- The IO and IP interviewed officers involved during November 2019 to January 2020. The IO issued the report at the end of February 2020.
- Ms X complained she wanted to receive the advanced level rate of payment for caring for Child B, compensation for her lost allowances and work done and recognition of the advanced work she had done. Ms X made eight complaints:
- The time taken to get Child B’s case to the Forum for reassessment and decision reached. The IO found a delay so upheld the complaint.
- The quality of the social worker’s assessment presented to the Forum. The IO consider the report ‘thin’ with further information not sought so upheld the complaint. The IO noted the decision was a professional one and may not have changed even with a more robust assessment report so made an inconclusive finding.
- Ms X was not invited to the Forum or told how it reached the decision. The IO found the Council did not invite foster carers to attend the Forum so did not uphold the complaint. The IO noted the Council accepted it did not set out the context to how the Forum made its decision when writing to Ms X so upheld this part of the complaint.
- After Ms X’s annual review in March 2019 the Council delayed telling her whether she could keep her advanced carer status. The IO found the delay was due to an incident between Ms X and Child B with the Council wanting Ms X to reflect on how she had dealt with it. Ms X did not agree with the Council. The IO found officers kept Ms X updated about the delay so did not uphold the complaint.
- Why the Council would not pay her at the advanced rate when caring for two siblings placed with her. The IO found it was a policy of the Fostering Framework and Finance Guide not to pay foster carers separate advanced level fees for any additional children being cared for. This applied to all foster carers so did not uphold the complaint.
- Ms X’s loss of income by agreeing to a request to care for just Child B. The IO found Ms X agreed to the decision to have one foster child to stabilise the placement and so she could focus on the child. The IO noted the needs of the child took priority and there was no reference to a foster carer being guaranteed a set number of placements by the Council. So, the IO did not uphold the complaint.
- The Council’s expectation Ms X would attend a 12-day advanced level training course without being paid a fee when other foster carers present were at advanced level and paid such a fee. The IO noted the Council accepted an error asking Ms X to attend a course before realising she had attended a similar one. So, there was no need for her to attend. But it did not pay any foster carers to attend courses. Foster carers received their normal fostering rate and can claim mileage and expense. The IO did not uphold the complaint.
- Ms X’s concerns the Forum should not make a decision just on the recommendations in a social work report without any other professional input. The IO found the Council’s procedure was for the Forum to consider a social work report so did not uphold the complaint.
- Reviewed the current system for reassessing the status of children already in placement and implemented a Framework for Children that is clear to all.
- Considered how to give feedback to others who have an interest in the Forum’s decision making.
- Reviewed the fostering and appraisal procedures to ensure they are clear to all.
- Apologised to Ms X for any upheld complaints.
The Council’s contact with Ms X and proposal to deregister her
- An officer spoke to Ms X in March 2020 and explained the Council considered the professional trusting relationship with her completely broken down and beyond repair. Ms X said she would continue to complain. The officer told Ms X the Council would not place any more children with her, hold an early review of her foster carer status and recommend her de-registration. The officer said Ms X could resign if she wished. The officer advised Ms X the Council would hold an enhanced review, give her an opportunity to discuss her views and for the Council to see if there were any way forward. The officer said it would be a virtual meeting due to the COVID-19 pandemic. The officer sent Ms X a letter confirming the conversation.
- In April 2020 the Council held a supervision session with Ms X. Ms X disagreed her relationship with the Council completely broken down and wanted to try mediation. The Council agreed to consider Ms X’s complaint at stage 3 panel hearing and then carry out an enhanced review of her foster carer status.
- Ms X told the Council in April 2020 she was resigning as a foster carer. The Council carried out the enhanced review in July 2020. The review referred to the difficult relationship between Ms X and the Council and the impact on placements and practice. The Council deregistered Ms X at her request as she was transferring to another Fostering Agency.
Stage 3 panel hearing
- Ms X asked to go to a stage 3 panel hearing at the end of March 2020, but the Council suspended the complaint investigation due to the COVID-19 pandemic. In May 2020 the Council told Ms X it could not hold a face-to-face panel due to government guidelines. Ms X wanted a face-to-face meeting and asked the Council to review the position each month. Ms X contacted the Council at the end of June 2020 accepting a virtual panel hearing due to the restrictions in place. Ms X asked to submit further documents to the panel.
- The Council reminded Ms X for the documents in July 2020 which she submitted in August 2020. Ms X referred to factual errors in the stage 2 report. The Council arranged a meeting between Ms X and the IO and IP in October 2020. The Council corresponded with Ms X over the amendments she wanted. In November 2020 the Council sent Ms X dates for the stage 3 panel hearing. The Council held the hearing in early January 2021.
- Ms X addressed the panel with her concerns. The panel considered the eight complaints made by Ms X at stage 2. It agreed with the outcomes found by the IO apart from one. This was about the time taken by the Council to tell Ms X the outcome of her appraisal in July 2019. It noted the Council awarded Ms X temporary advanced carer status. But it did not specify improvements she needed to achieve so the deferments in 2019 ‘were not purposeful’. The panel disagreed with the outcome of the stage 2 on that point and upheld it.
- The panel reported its findings in January 2021 with nine recommendations to the Council. These included acting on the recommendations of a stage 2 investigation and ensuring clarity in communication with foster carers. It included providing clear information to foster carers about the structure, format, and decision-making process of the Forum. The panel also reminded the Council about guidance on assessments to ensure high-quality documents and quality assurance processes. The panel recommended the Council apologise to Ms X for the newly upheld complaint point.
- The Council adjudicated on the panel’s findings in February 2021. It apologised to Ms X for her time and trouble in taking the complaint to the panel hearing and for being unable to resolve her complaints at an earlier stage. The Council accepted the panel’s findings and explained the actions it was taking in response to the recommendations made. The Council also apologised to Ms X for the newly upheld part of her complaint.
- The Council confirms the action it has taken. This includes reviewing processes and action plan templates. It ensures any wider learning or specific changes in practice are shared with the Foster Care group and other management meetings. The Council has created a one-minute guide for foster carers and ensures it receives the views and knowledge of the foster carer about the child if there is a placement update request.
Ms X’s corporate complaint
- Ms X complained to the Council in September 2020 its senior management systematically bullied her. This was because she raised issues about decision-making on children’s status, recognition for work done and payments for young people in her care. Ms X said her annual review found no evidence of ‘malpractice’ and recommended she foster for another year. But she felt unable to do so. Ms X asked the Council to apologise for causing her to resign and compensation for seven months of lost income as it chose to withhold placements from her.
- The Council considered the complaint through its corporate complaint procedure due to the bullying allegation. Under this complaint procedure, it appoints an independent investigating officer (IIO) independent from the service complained about to investigate. The Council says the procedure does not require the officer to be independent of the Council.
- The Council appointed an IIO to the complaint. Ms X expressed concern about the background and experience of the officer to deal with the complaint. The Council appointed another experienced head of service to deal with the complaint. The IIO visited Ms X to discuss her complaint in October 2020.
- The IIO contacted Ms X twice to apologise for the time taken to complete the investigation. The Council says it was due to Ms X’s continually challenging the scope of the investigation, the need to change the IIO, officer workloads, and closing for Christmas/New Year. The Council issued the report and adjudication letter to Ms X in early February 2021. Ms X made 22 points of complaint. The IIO considered some points together as they repeated or referred to the same issues. The summarised issues and findings were:
- Making a negative decision at panel to change the needs of a young person yet overturn it with another foster carer a few weeks later. The IIO found this related to a complaint we considered and upheld in 2019. So, the IIO did not investigate this part of the complaint.
- Refusing to allow a respite placement when all representatives agreed it could go ahead. The IIO found no evidence to support this so did not uphold the complaint.
- Being told the Council would not place any more children with her because she complained so lost seven months of work. The IIO found no evidence to support this and there was no obligation for the Council to place children with individual foster carers. So, the IIO did not uphold the complaint.
- Being asked to drop her complaints, move forward and she would be offered placements. The IIO found no evidence to support this so did not uphold the complaint.
- Being asked to resign and if she did not comply the Council would build a case to deregister her. The IIO found no evidence that Ms X was asked to resign. But found officers were open and honest with her explain the decision not to place further children with her. This was due to the professional relationship with Ms X breaking down. There was evidence Ms X’s grievance with practice and procedures impacted on child placements and the timing and complexity of complaints made it difficult for both to ‘move on’. The IIO did not uphold the complaint.
- The Council building a case against Ms X for the annual review she needed to defend. And the Council unfairly threatened her by suggesting she should resign or deregistered when she had not done anything wrong. The IIO found Ms X chose not to resign and went to an enhanced review which recommended she remain as a foster carer for a further year. The IIO did not uphold the complaint.
- Ms X suggested mediation with the Council, but it took too long so she moved to another fostering agency. The IIO found Ms X gave notice to the Council within four weeks of asking for mediation which did not give time to progress it with her. So, the IIO did not uphold the complaint.
- An officer on the Forum knew Ms X, so was not impartial and neither was the panel’s decision making. The IIO found the officer as post holder was required to be involved with the panel and did not preclude the officer from making decisions on case management. The IIO did not uphold the complaint.
- The Council’s decision-making was linked to budgets. The IIO found the Council had budgets, but it was not a factor in making decisions about an individual child’s placement. The IIO did not uphold the complaint.
- Senior managers disliked her and did not like her challenges. The IIO found the Council welcomed practical challenges of the service practice and procedures, and this has led to improvements. But Ms X could not accept decisions about her foster carer and child placement status leading to a breakdown in relationships. The IIO did not uphold the complaint.
- Ms X raised issues with the way the Council dealt with her appraisals and considered she did not have relevant experience. Ms X considered the Council’s decision to need her to have six monthly appraisals a personal attack as it did not ask other foster carers to do so. The IIO found that all advanced foster carers are required to complete training. The panel agreed to Ms X’s advanced status if she completed training. The panel later confirmed Ms X had already completed training, so this was no longer a requirement. The IIO found the Council had made similarly recommended other foster carers complete training. The IO found it was about training needs rather than inferring Ms X lacked the appropriate or relevant experience. The IIO did not uphold the complaint.
- Concerns about Forum procedures as it only considered comments from the social worker. The IIO found the statutory complaints procedure dealt with this so did not investigate this point.
- The Forum had previously reviewed and turned down Ms X’s request to increase the status of four foster children she had cared for. The IIO found this related to two complaints we considered in 2019. The IIO did not investigate this point of Ms X’s complaint.
- Having to attend an advanced level training course for 12 days. Ms X said she was self-employed so could not afford time off work to gain accreditation to the next level. Ms X left the course after 2 days as she did not feel supported enough to continue. The IIO considered the statutory stage 2 complaint looked at this point so did not investigate it.
- The Council failed to recognise her challenges as fair, and she had unsuccessfully taken the Council to the small claims court on one occasion. The IIO did not investigate this point as it was subject to a court ruling.
- Ms X considered foster carers were not employed so had no rights, and she felt aggrieved about her treatment. The IIO found while foster carers are not subject to employment rights there are laws, national guidance and local procedures outlining the roles and responsibilities of both Council and foster carers. The IIO did not pursue this part of Ms X’s complaint.
- To appoint a single point of contact to deal with Ms X’s complaints to help maintain the independent role of a supervising social worker who must maintain an ongoing role with Ms X.
- To build managing multiple or complex complaints into the foster carer agreement and review procedures. And the Council should consider an early review if there is an impact on child placements.
- To apologise to Ms X over the oversight in training need. And the Council ensure full training records are available to the panel.
- The documents provided show that we have previously considered some of Ms X’s concerns in 2019. Ms X has also made a claim to the courts about the Council’s payments to her as a foster carer. So, I see no grounds to reconsider those points again.
- I do not intend to reinvestigate the complaints Ms X raised at stage 2 and 3 of the statutory complaint procedure and at stage 2 of the corporate complaints procedure. This is because I am satisfied from the evidence provided the complaints have been considered in detail. Ms X has been interviewed by the investigating officers and stage 3 panel and given an opportunity to put forward her concerns. The Council accepted the findings and recommendations made after each investigation. It has provided evidence to show it has carried out the recommendations made. These include apologising to Ms X for any upheld complaints. And it has improved practice and procedure where needed which I consider is suitable action for the Council to take. Because of this I do not consider I can add anything further to the investigations already carried out or achieve a different outcome for Ms X.
- The stage 3 review panel reached a different conclusion on one part of Ms X’s complaint and upheld it. But I do not consider this makes the stage two investigation flawed as it is a decision the review panel is entitled to make. So, I do not consider there are grounds to reinvestigate all the complaints raised by Ms X. This is because the Council accepted the findings and recommendations made on this point. It also apologised to Ms X which is suitable action for it to take.
- Ms X expressed concern about the independence of the IIO at stage 2 of the corporate complaint procedure. The Council explained its procedures allow for an officer independent of the service complained about to be appointed to deal with the complaint. The IIO does not need to be independent of the Council. I find no fault by the Council as it appointed the IIO according to its procedures.
- The evidence shows the statutory stage 2 investigation took some time to complete. The Council accepted the stage 2 in June 2019 but did not appoint an IO and IP until October 2019. The Council has set the start date of the complaint investigation as November 2019. But it accepted Ms X’s complaint in June 2019, so I consider the Council delayed between June and November 2019. The Council issued the stage 2 report in February 2020. This resulted in the stage 2 investigation taking longer than the 65 working days recommended in government guidance which is fault by the Council. But I do not consider it has caused a sufficient injustice to Ms X to warrant recommending a remedy for the delay. This is because Ms X could add an extra point of complaint she wished to be considered and so she benefited from the delayed start.
- It is unfortunate the stage 3 review panel hearing was delayed due to the COVID- 19 pandemic. But the Council offered Ms X a video meeting as recommended by government guidelines in place at the time. Ms X decided not to accept the offer for several months. So, I cannot say the delay was due to any fault by the Council.
- I am completing my investigation. There was fault by the Council as it delayed starting the statutory stage 2 complaints procedure investigation. But the delay has not caused a significant injustice to Ms X.
Investigator's decision on behalf of the Ombudsman