The Ombudsman's final decision:
Summary: Mr and Mrs X complain the Council made a wrong decision about their application to become foster parents. We found the Council treated Mr and Mrs X unfairly which resulted in a flawed decision to refuse their application. The Council has accepted fault and has now offered to proceed with the application to the next stage. That said, Mr and Mrs X still suffered an injustice and so we have recommended a number of remedies.
- The complainants, who I refer to as Mr and Mrs X, are making a complaint about the way their application to become foster carers was handled by the Council. Specifically, Mr and Mrs X alleged the following:
- That during a three-day fostering course they attended virtually, course tutors raised unfair and biased concerns about them which resulted in their application being rejected.
- The Council failed to verify inaccurate information received from referees. They also say the Council is wrongly refusing to disclose documents and information about their references and application checks.
What I have investigated
- I have investigated the concerns raised by the course facilitators and whether there was any fault in the decision-making process which led the Council to decide not proceed with Mr and Mrs X’s application. I have not investigated the Council’s decision not to disclose confidential information relating to Mr and Mrs X’s referencing and application checks. I have given reasons at the end of this statement why I have not investigated this issue.
- Importantly, the role of the Ombudsman is to remedy maladministration (fault) resulting in a significant and personal injustice. We are not a court of law. Mr and Mrs X’s complaint is the Council has breached its duty of care and has therefore been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. Also, only a court can decide if a council has been negligent and what damages must be paid. We cannot decide on the balance of probabilities whether a council has been negligent and have no powers to enforce an award of damages. My investigation therefore is limited to identifying maladministration.
- In addition, we aim to remedy personal injustice wherever we reveal there has been fault. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable financial loss. It might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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).
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).
How I considered this complaint
- I have reviewed Mr and Mrs X’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. Both Mr and Mrs X and the Council received an opportunity to comment on a draft of my decision. Each of their comments were considered before I made a final decision.
General background information
- 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. They may also be 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.
- 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 are normally approved for a particular number and type/age of children.
Chronology of events
- In autumn 2020, Mr and Mrs X applied to the Council to become foster carers. Some days later, the Council visited Mr and Mrs X to collect references and other information.
- In early 2021, Mr and Mrs X completed various online fostering courses and attended a three day fostering course organised by the Council.
- After the three day course, Mr and Mrs X were contacted virtually by the course tutors to receive feedback. Before delivering feedback however, the course tutors told Mr and Mrs X their application would not be forwarded to panel.
- Some days later, Mr and Mrs X received an email from a Council officer. This said the decision not to proceed with their application was made due to concerns arising from their attendance on the three day fostering course. In particular, the course tutors reported concerns regarding Mr X’s ability to work with professionals. They also noted concerns with respect to his views of society and social issues, the relationship dynamic between him and Mrs X and a possible punitive approach to parenting.
- Mr and Mrs X also received written feedback from the three day course. They say this included inaccurate allegations and statements and that the above matters had been distorted by the course tutor.
- Mr and Mrs X made a formal complaint to the Council disputing each of the above areas of concern. They said they felt discriminated against without the opportunity to defend themselves and they had been unfairly penalised for asking relevant questions, speaking their minds and expressing their opinions and life examples. Further, Mr X requested all documents in relation to his former partner’s reference.
- Some days later, the Council responded to Mr and Mrs X. It said it appreciated the decision was very difficult to hear, but it could not explain the reasons why it decided not to progress their application. Also, the Council said it could not disclose any information relating to their references by law.
- Mr and Mrs X escalated their complaint to stage two of the Council’s complaints policy. In addition, they repeated their request for all information held by the Council relating to their referencing.
- The Council responded to Mr and Mrs X. It accepted fault in the course being virtual had made it difficult for fostering applicants and facilitators to explore any areas of concern in further detail. Further, the Council said this made open discussion in a group setting much harder and it acknowledged that some of Mr and Mrs X’s contributions had been unfairly taken out of context. On that basis, the Council recommended that Mr and Mrs X’s application should continue to the next stage.
- In addition, the Council acknowledged that Mr and Mrs X were not asking for the disclosure of the source of information, rather the information held about the referencing. However, it said it was not able disclose referee information as this may identify the source.
- The basis of Mr and Mrs X’s complaint is that Council officers took their comments, questions and life experiences out of context. They say the Council used these unfairly to form an unjustified negative view of their ability to parent. In view of the Council’s responses, I am inclined to agree with Mr and Mrs X. The Council accepted some of Mr and Mrs X’s comments had been taken out of context and that the course facilitators failed to explore any areas of concern in further detail with them. The Council has apologised to Mr and Mrs X for its failings. For the these reasons, there is no question the Council was at fault and the initial decision was flawed. I must therefore consider whether Mr and Mrs X have suffered an injustice.
- In my view, Mr and Mrs X devoted a significant amount of time and energy into their application to become foster parents. I do consider the Council’s early flawed decision to reject their application caused them significant distress and confusion. Not least because this led them to question whether a referee had given an unjustified adverse reference against them. That said, I do not accept the Council’s early flawed decision has prevented them from becoming foster parents. The Council has rightly apologised, reversed its decision and offered to advance with Mr and Mrs X’s application to the next stage in the process. I do not however consider the Council’s apology to be sufficient and I am therefore recommending a financial remedy be paid by the Council to Mr and Mrs X.
- In light of the fault and injustice identified above, the Council will, within one month of a final decision, perform the following:
- Issue a new written apology to Mr and Mrs X which acknowledges the fault and injustice identified in this statement.
- Pay Mr and Mrs X £600 on account of distress suffered, their uncertainty during the application process and time and trouble.
- The Council was at fault as it treated Mr and Mrs X unfairly and made a flawed decision regarding their application to become foster parents. This caused Mr and Mrs X distress and uncertainty and so I have recommended a remedy. I have not investigated any data protection matters for the below reasons.
Parts of the complaint that I did not investigate
- We normally expect a complainant to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. Mr and Mrs X say the Council is in breach of data protection legislation by not providing key information to allow them to test the accuracy of its statements. In my view, the ICO is best placed to consider this issue. Further, Mr and Mrs X have stated they are inclined to take this course of action and so I consider it would be reasonable for them to be able to do so.
Investigator's decision on behalf of the Ombudsman