Summary: Mrs X complains that the Council’s investigation into an incident where she did not take a young person to hospital was biased and unfair. The Council is at fault as it failed to make a clear distinction between a concern or allegation when investigating a matter involving Mrs X and in its communication with her. The Council also failed to clearly explain the process of the investigation, failed to ensure Mrs X had timely independent support and wrongly considered the concern or allegation to also be against Mr X. The Council also delayed in dealing with Mrs X’s complaint and in making an agreed payment to her. The faults by the Council caused distress to Mr and Mrs X which it will remedy by apologising and making a payment of £500 to them.

The complaint

1. Mrs X complains that the Council’s investigation into an incident where she did not take a young person in her care to hospital was biased and unfair. In particular, she complains the Council:

• did not inform her of the allegations or concerns leading to the investigation.
• did not clearly explain if the matters leading to the investigation would be investigated as a concern or allegation;
• did not inform her of the purpose of the meeting on in June 2020 in advance of the meeting to enable her to prepare
• did not take account of Mr and Mrs X’s account of the incident and did not clearly explain how Mrs X could submit her account to the LADO;
• was biased as the social worker who was involved in the incident was also involved in the investigation.
• wrongly considered the concerns or allegations to be against Mr X as well as Mrs X when he was not involved in the incident.

2. As a result Mrs X considers the investigation and LADO decision that an allegation of neglectful practice is substantiated is flawed and unfair.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have:

• Considered the complaint and the information provided by Mrs X;
• Discussed the issues with Mrs X;
• Made enquiries of the Council and considered the information provided;
• Invited Mrs X and the Council to comment on the draft decision

6. 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.

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What I found

Law and guidance

Working together to safeguard children

7. Government Guidance ‘Working together to safeguard children’ provides organisations working with children and families should have clear policies for dealing with allegations against people who work with children. Such policies should make a clear distinction between an allegation, a concern about the quality of care or practice or a complaint. An allegation may relate to a person who works with children who has:

• Behaved in a way that has harmed a child or may have harmed a child;
• Possibly committed a criminal offence against or related to a child;
• Behaved towards a child or children in a way that indicated they may pose a risk of harm to children.
• Behaved or may have behaved in a way that indicates they may not be suitable to work with children.

8. The guidance provides that local authorities should have a designated officer or team of officers to be involved in the management and oversight of allegations against people who work with children. The Local Authority Designated Officer (LADO) is a person responsible for the management and oversight of investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children. The LADO brings together senior representatives from the employer (in this case, the fostering service), social workers and the police.

Fostering minimum standards

9. The fostering minimum standards say “Allegations against people that work with children or members of the fostering household are reported by the fostering service to the LADO. This includes allegations that on the face of it may appear relatively insignificant or that have also been reported directly to the police or children and family services.”
10. One of the standards for fostering services is to “ensure that a clear distinction is made between investigation into allegations of harm and discussions over standards of care. Investigations which find no evidence of harm should not become procedures looking into poor standards of care - these should be treated separately.”
11. The standard also says during an investigation the fostering service make support which is independent of the fostering service, available to the person subject to the allegation.

What happened

12. Mr and Mrs X provide supported lodgings for young people who are looked after by the local authority.
13. In 2020 Miss Y, a young person staying with Mrs X, contacted her social worker as she was feeling unwell after a medical procedure. The Council’s records show Mrs X also contacted her supervising social worker, officer 1. She advised Mrs X to take Miss Y to Accident and Emergency. Mrs X disagreed with this advice as she considered Miss Y did not require medical treatment. The Council’s records note officer 1 raised concerns with Mrs X that she was not meeting Miss Y’s health needs. Officer 1 took Miss Y to hospital and Miss Y did not return to Mrs X’s care.
14. The Council’s records note officer 1 sent a LADO notification form to the LADO about Mrs X’s reluctance to take Miss Y to hospital. In an email to officer 1, the LADO said she had made additional comments and recommendations of the notification form in respect of the allegation. Officer 1 had notified Mrs X of the referral and sent a leaflet about the role of the LADO to her in response to Mrs X’s request for information. Mrs X has said she did not receive a leaflet.
15. Officer 1 and her manager, officer 2, visited Mr and Mrs X. Shortly before the meeting Mrs X asked if she could access independent support. The Council’s record of text messages between officer 1 and Mrs X show officer 1 said Mrs X could have another supervising social worker during the investigation but they would not be from outside the fostering service. Officer 1 asked if Mrs X had been given the telephone number for independent support from another organisation.
16. The Council’s record of the meeting between officer 1, officer 2 and Mr and Mrs X notes officer 2 informed Mr and Mrs X the meeting was regarding the incident with Miss Y. Mrs X queried if this was an allegation. Officer 2 explained there was a concern about the response to Miss Y’s health needs.
17. The record of the meeting shows Mrs X gave her account of the incident and her reasons why she did not consider it necessary for Miss Y to attend hospital.
18. Mrs X contacted the LADO to ask for clarification on the difference between a concern and allegation. The LADO explained what amounted to an allegation and that she may take information that does not meet the threshold of an allegation. This may be deemed a concern. The LADO said Mrs X would need to clarify with her manager what they are referring to. She went on to say that reading between the lines it appears they are not stating there is an allegation.
19. Mrs X also contacted officer 1 by email. She asked for a copy of the notes of the meeting and for information on what would happen next. Officer 1 advised the notes of the meeting and additional information would be sent to the LADO for their decision. In response to further questions from Mrs X, officer 1 confirmed that she could also submit information to the LADO. Officer 1 also advised Mrs X that the Council’s documentation for the LADO would not be shared with her.
20. Mrs X raised concerns that the Council was not sharing details of the allegations with her. She also said the record of the meeting with her and Mr X did not reflect the discussion with officers 1 and 2. Mrs X sent her corrections to officer 1 who advised she would add Mrs X’s comments to the supervision notes but would not be amending them.
21. Mrs X sent a statement to the LADO. She said the process was unfair for a number of reasons including that the Council had not shared all the concerns, she had not been provided with independent support for the meeting with officers 1 and 2 and the notes were taken by officer 1 who reported the concerns. Mrs X also said the notes of the meeting were inaccurate. Mrs X set out her account of the incident with Miss Y and her position that she did not fail to meet Miss Y’s health needs.
22. The LADO considered that the matter was substantiated under the category of neglectful practice. In her email to officers 1 and 2 and a senior officer, the LADO said it was not the first time Mr and Mrs X had refused to seek medical attention for young people in their care, it had become a battle of wills and the needs of the child had been overlooked. Mrs X disputes she had refused to seek medical attention before. The LADO also noted Mr and Mrs X had stated they were confused as to whether the matter was a concern or allegation and asked if officers would look at the terminology used as it appears problematic. The LADO’s email also asked if Mr and Mrs X had provided any written logs for the day of the incident.
23. A senior officer notified Mr and Mrs X of the outcome by letter. This stated the concern met the threshold for an allegation of neglect but was unlikely to meet the threshold for police involvement so opened the matter on the basis of consultancy.
24. Mr and Mrs X made a complaint to the Council in late 2020. The Council responded at stage one of its complaint procedure in April 2021. It apologised for the delay. The Council acknowledged its communication could have been improved regarding the process and that Mr and Mrs X felt unable to access independent advice. It did not uphold Mr and Mrs X’s complaints of bias and serious factual omissions. Mrs and Mrs X escalated their complaint to stage two.
25. At stage two of the complaints procedure, the Council agreed to make a payment for professional fees for eight weeks as a good will gesture. This was because it had not explained there would be a change of payment when Miss Y did not return to their care. The Council has acknowledged it overlooked making the payment. It has now made the payment.
26. In response to my enquiries the Council has acknowledged it took too long to deal with Mr and Mrs X’s complaint. It offers a payment of £250 to acknowledge the distress caused.
27. In response to my enquiries the Council has said the matter was a concern that became an allegation following discussion with the LADO.

Analysis

28. It is not my role to investigate the incident and decide whether the matter amounts to a concern or allegation. My role is to consider how the Council investigated the matter.

Was the matter an allegation or concern and information provided to Mrs X?

29. Working Together to Safeguard Children and the Fostering Minimum Standards provide that a clear distinction should be made between an investigation into an allegation and a quality of care concern. The Council failed to make such a distinction when investigating the matter of Mrs X not taking Miss Y to hospital. There is also contradictory evidence. The LADO notification refers to allegations as did the LADO when she advised officer 1 she had commented on the form. The investigation report refers to both allegations and complaints. Officer 2 advised Mrs X it was a concern at the investigation meeting. Mrs X has also provided evidence from the review in November 2020 which states the matter was a concern. The record of the LADO decision shows she considered it to be an allegation. It is therefore not clear if the Council investigated the matter as an allegation or concern and the failure to make this distinction is fault.
30. The Council’s communication with Mrs X was poor as it did not clearly explain to Mrs X whether the matter was being investigated as a concern or allegation despite her requests for clarification. This is likely to be a consequence of the Council failing to make the distinction between an allegation or concern when investigating the matter. In response to one of Mrs X’s emails the LADO said that reading between the lines the matter was a concern. Officer 2 also told Mrs X it was a concern at the meeting with officer 1. But the Council did not clearly confirm this to Mrs X so it is understandable she was surprised when the LADO concluded the allegation had been substantiated. I note the LADO acknowledged the use of the terminology had been problematic. This lack of clarity is fault.
31. There is no evidence to show the Council clearly explained to Mrs X the process to be followed, including in advance of the meeting with officers 1 and 2 about the purpose of that meeting. There also appears to be a lack of clarity about when Mrs X could submit her account to the LADO.
32. However, I consider the Council informed Mrs X as to the nature of the concern or allegation. The record of the meeting with officers 1 and 2 show the matter was discussed with Mrs X. She also submitted her account to the LADO which shows she was aware of the nature of the allegations or concerns.

Support

33. The fostering minimum standards provides that independent support should be made available to the person under investigation. The Council referred Mrs X to an organisation for support. But it did not allow sufficient time to enable Mrs X to have independent support at the meeting with officers 1 and 2. This is fault.

Bias and submission of Mrs X’s account

34. Mrs X considers the involvement of officer 1 in the investigation is evidence of bias. The Council has acknowledged this to be a learning point and that such investigations should be independent. I understand the involvement of officer 1 caused Mrs X to consider the proceedings to be biased. But, on balance, there is no evidence of bias as the decision was made by the LADO, not officer 1. Mrs X was also able to provide her account of the incident and why she considered the record of the meeting with officers 1 and 2 to the LADO before she reached her decision.
35. Mrs X considers the LADO did not have sufficient information to make the decision. She says this as the LADO’s decision enquiries about the written logs. I have also considered whether the Council should have confirmed Miss Y’s medical needs with the hospital. On balance, I consider the LADO had sufficient information to reach a decision. The LADO had sight of Mrs X’s account of the incident and her comments on the notes of her meeting with officers 1 and 2. The written logs were unlikely to add any further key information. The matter of concern or allegation was about the principle of Mrs X not taking advice about seeking medical advice. So, it is unlikely an account from the hospital would be key information.

Wrongly considered the concern or allegation to be against Mr X

36. The Council has acknowledged that Mr X was not involved in the incident so it should not have included Mr X in its correspondence about the matter. It accepts this led to confusion. The Council will take this into account in the event it deals with any future concerns or allegations. I consider the Council should also place a note on file to ensure it is clear the matter did not involve Mr X.

Injustice to Mrs X

37. On balance, I do not consider the Council’s failure to make a clear distinction between whether it was investigating a concern or allegation and its poor communication with Mrs X means the LADO’s decision of a substantiated allegation is flawed. The LADO reached this decision after considering all the information including Mrs X’s account of the incident. But the lack of clarity and failure to ensure Mrs X could have support at the meeting with officers 1 and 2 caused confusion and distress to her. It also contributed to Mrs X’s perception that the investigation was unfair. The Council should remedy this injustice by making a payment of £250 to her to acknowledge the distress caused. This payment is in accordance with our guidance on remedies.

Other issues

38. The Council has acknowledged it delayed in dealing with Mrs X’s stage one complaint which caused distress to her.
39. The Council has also acknowledged it failed to make the goodwill payment of eight weeks fees to Mrs X. The Council has now done so but the delay will have caused further frustration to Mrs X.
40. The Council’s offer of a payment of £250 to acknowledge the distress caused to Mrs X is sufficient and proportionate to remedy the distress caused by the both the delay in dealing with Mrs X’s complaint and the delay in making the payment to Mrs X. This payment is in accordance with our guidance on remedies.

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Agreed action

41. That the Council:
1. Sends a written apology and makes a total payment of £500 to Mr and Mrs X to acknowledge distress caused by its failure to make a clear distinction as to whether it was investigating a concern or allegation in both its investigation and in its communication with Mrs X, its failure to explain the process to Mrs X, its failure to ensure independent support was available for Mrs X and wrongly considering the concern or allegation was also against Mr X. The Council should also apologise to Mr and Mrs X for the distress and frustration caused by the delays in dealing with their complaint and in making the agreed goodwill payment.
2. Reviews its procedures for investigating concerns or allegations against people who work with children to ensure it makes a clear distinction between investigating allegation or discussing concerns and to ensure this is clearly communicated to the person under investigation or subject of the concerns. The procedures should also ensure the process to be followed is clearly communicated to the person under investigation or subject of concerns and they are promptly referred to independent support.
3. Places a note on file to record the concern or allegation was not against Mr X. The Council should also send a copy of this note to Mrs X and the Ombudsman.
42. The Council should take the action set out at a) within one month of my final decision and the action at b) and c) within two months of my final decision.

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Final decision

43. The Council is at fault as it failed to make a clear distinction between a concern or allegation when investigating a matter involving Mrs X and in its communication with her. The Council also failed to clearly explain the process of the investigation and failed to ensure Mrs X had timely independent support and wrongly considered the allegation/concern to also be against Mr X. The Council also delayed in dealing with Mrs X’s complaint and in making an agreed payment to her. The faults by the Council caused distress to Mr and Mrs X which it has agreed to remedy in an appropriate and proportionate way. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman