Summary: The complainants, foster carers, complained that the Council failed to understand their concerns about Covid-19 when insisting that they send the foster children to school prior to the second lockdown in December 2020. The complainants also considered the Council raised unfounded allegations about them as part of its complaint investigation. We find fault in some aspects of the Council’s approach and the Council has agreed a way to remedy the injustice. We are therefore closing the complaint.

The complaint

1. The complainants, who I refer to as Mr and Mrs X, are foster carers registered with an independent fostering agency. They looked after three children (a sibling group) for six and a half years, placed with them by the Council. I refer to the children as B, C and D.
2. Mr and Mrs X complained that:
1. the Council failed to take into account their concerns about sending the children to school during the period leading up to Christmas 2020, and beyond, when cases of Covid-19 were increasing, and the complainants were unvaccinated and in a vulnerable age and ethnicity group. The Council insisted the children went to school even though the school was satisfied with the online teaching for them, which had been taking place, and the two youngest children (C and D) preferred online teaching;
2. the social worker was inconsistent in her approach, was dismissive of them and made arrangements for the three children to return to their mother’s care at short notice;
3. the social worker made unfounded allegations about them;
4. the Council’s stage two complaint investigation was flawed because the investigating officer did not speak to the complainants directly and did not check out the facts relied upon with them. This meant that the complaint investigation relied upon inaccurate information; and
5. the Council has not shown appreciation of all the good care they have provided to the children.
3. The Council has investigated the complaints, and, at stage one of the corporate complaints process, it upheld the complaint that the complainants were told the wrong date for the children’s move, upheld the complaint about the social worker’s behaviour on the day of the move, and upheld the complaint that the social worker discussed money matters in front of the children on the day of the move. But the other complaints were not upheld. But the complaint about the children being required to attend school was not upheld.
4. The complainants asked for a stage two investigation. The complainants say that the investigating officer made unevidenced allegations about their care, as follows:

“that the children said they were made to do homework during the holidays; that they were travelling by bus on shopping trips, so the Council thought they were already leaving the family home and therefore could attend school; that the children wanted to return to school and the eldest foster child (B) was beginning to self-harm; that there were tensions at home, they were made to wear masks, there was little affection, they were eating alone and a camera was placed outside B’s bedroom”.

5. The complainants say that they were not asked about these allegations or able to dispute them at stage two. They have been caused avoidable distress and their reputation called into question.

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What I have investigated

6. I have looked at matters between the period of October 2020 to February 2021, when the children were moved from Mr and Mrs X’s care to their birth mother in accordance with the agreed care plan.
7. I have not investigated the professional standards of the social worker for the reasons set out in the last paragraph of this statement.
8. I issued a draft decision statement to the Council and to the complainants. I have taken into account their further comments before reaching my final decision.

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The Ombudsman’s role and powers

9. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
10. 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

11. I made enquiries of the Council and sought comments from the social worker. I have spoken to the complainants and have asked them to respond to some of the information provided by the Council.
12. The Council has sent copies of key documents on the children’s services files (for example notes from the social worker’s statutory visits to the children, minutes of looked after children’s reviews up to September 2020 and email correspondence between the Council and the independent fostering agency). These documents cannot be disclosed to Mr and Mrs X, but I have considered the information.
13. As the Council has upheld the complaint about the day the children were moved from Mr and Mrs X’s care (complaint 2), I have not reinvestigated this matter. But I have considered whether there has been a resulting injustice from the faults identified by the Council.

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What I found

Legal and administrative

14. The National Fostering Minimum Standards 2011 says investigations into allegations against carers should be carried out quickly and should provide protection to the child but also support to the person subject to the investigation. Foster carers should be told in writing about allegations against them and given information about the timescale for completing the investigation.
15. Once the council accommodates a child, that child is considered a ‘looked after child’ and councils are required to promote their welfare. The council will appoint an independent reviewing officer (IRO) to ensure that agreed care plans for the child are adhered to.
16. Councils must have a care plan for looked after children which will be reviewed regularly at statutory looked after children reviews.

Impact of the COVID-19 pandemic

17. This complaint involves events that occurred during the COVID-19 pandemic. The government introduced new and frequently updated rules and guidance during this time. The Coronavirus Act 2020 allowed the Secretary of State to temporarily change existing legal requirements and issue guidance about provision of education for children with special educational needs and disabilities and vulnerable children.

Risk assessments

18. On 23 March 2020 schools in England closed to most pupils as part of the first national lockdown, apart from children of key workers and those who were vulnerable; these were children with an allocated social worker and/or were in care.
19. The government asked councils to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an Education, Health and Care (EHC) Plan, should stay at home or go into school. (An EHC Plan is for pupils with special educational needs requiring specific provision).
20. When the government issued this guidance councils still had a duty to ensure the provision in an EHC Plan was in place. But the guidance noted it may be difficult to do so, for example where the school was shut or could not open safely, or where parents had chosen to keep the child at home and agreed temporarily that the child would not be accessing education at the school.
21. Just before Christmas 2020, there was a second national lockdown period. On 5 January 2021 the government announced schools in England would close until at least mid-February, in response to the COVID-19 pandemic. Schools remained open for vulnerable children, including those with EHC plans, and the children of critical workers. Schools were closed to most children until 8 March.
22. The government issued guidance to schools on 7 January. This said:

“Where a pupil has provision specified within their EHC plan, it remains the duty of the local authority and any health bodies to secure or arrange the delivery of this in the setting that the plan names. However, there may be times when it becomes very difficult to do so, for example, if they are self-isolating. In this situation, decisions on how provision can be delivered should be informed by relevant considerations including, for example, the types of services that the pupil can access remotely, for example, online teaching and remote sessions with different types of therapists. These decisions should be considered on a case-by-case basis, avoiding a one size fits all approach.”

23. The guidance said schools should follow advice about minimising the risk of transmission, including considering how to reduce contacts and maximise distancing between those in school wherever possible. Suggested measures included keeping children in consistent groups, avoiding contact between groups and staff maintaining distance from pupils and other staff as much as possible.
24. B, C and D were considered vulnerable children as they were looked after. B also had an EHC Plan.
25. Hertfordshire County Council guidance was for vulnerable children to continue to attend school as provision was made for this arrangement and precautions were taken in schools to support this. This was also in line with national guidance and was further directed in the prime minister’s national address on 4th January 2021, where he stated that, despite schools closing until the half term, vulnerable children were to attend school for face-to-face teaching.
26. In respect of its corporate complaints’ procedure, it is normally a manager from the service, who has had no involvement in the case, who investigates at stage two. Officers are advised to speak to complainants, where the complaint is unclear. But investigating officers retain the discretion to do so or not. This is to prevent delay.

Background

27. The Council says that it worked well with Mr and Mrs X until April 2020 when the Council says that there were concerns about the payment of pocket money and clothing allowance to the children. The Council says that Mr and Mrs X wanted to save the money for the children whereas the Council says that the children wanted more autonomy.
28. The Council says that Mr and Mrs X were resistant to changing their approach and that was a concern. The children were also unaware of how much pocket money or clothing allowance they were entitled to.
29. When the children moved to their mother’s care, Mr and Mrs X say that the independent fostering agency repaid the monies, which they had saved for the children.
30. In March 2020, there was the first Covid-19 lockdown with schools closed as from 23 March 2020. The Council says that, during the pandemic, Mr and Mrs X stopped hugging the children and that B found this difficult. The Council says that Mr and Mrs X insisted on wearing masks in the house, but the Council thought this was unnecessary because they and the children were not going out and remaining in the same household.
31. The Council says that B was distressed by the isolation and the social worker for the children discussed this with the carers and with their supervising officer from the fostering agency.
32. During March and July 2020, the children were home schooled with D attending school once per week. As B had an Education, Health and Care (EHC) Plan, there were different requirements for children with such Plans. The Council says that it asked the fostering agency to carry out a risk assessment to support these decisions to home school. But it failed to do so.

Complaint (1): school attendance

33. In September 2020, the Council reviewed the care plan and agreed to explore the possibility of the children returning to their birth mother. The Council carried out parenting assessments and started to increase the children’s contact with their mother, including arranging overnight contact. Mr and Mrs X fully supported the plan and, although the children stated they were happy in the placement, they too wanted to return home.
34. In September 2020, schools were reopened. B, C and D returned to school until early December 2020. Mr and Mrs X say that in early December 2020, when Covid-19 cases were rising, they asked for the children to be educated at home. This is because they were in the vulnerable age and ethnicity groups, had not been vaccinated and there had been a Covid-19 death in the family.
35. The Council says that the social worker asked the fostering agency to carry out a risk assessment, as required, to consider Mr and Mrs X’s concerns about the children being at school and whether the foster carers were at risk. The Council says that the social worker and her manager met the fostering social worker because a risk assessment was not forthcoming.
36. It was agreed at this meeting that the fostering agency would undertake a risk assessment. But it still did not. The purpose of the risk assessment was to devise a safety plan which enabled the children to return to school while also recognising and protecting Mr and Mrs X’s health.
37. The Council says that B, C and D wanted to return to school. They were also going out into the community and playing football in the local park.
38. Mr and Mrs X say that the online teaching involved zoom with a teacher present; and not the children learning online on their own. They say that the school wanted the children to be at home because of rising Covid-19 cases and the complainants say that the school was satisfied with their learning.
39. Mr and Mrs X accept that B wanted to go to school. But she had a boyfriend there and they were concerned about B’s online activity on her mobile telephone at school. They raised this with the social worker. The matter was considered by the Police.
40. The Council says that all the professionals involved agreed the children should return to school. But I note the fostering agency did raise a concern about this in view of Mr and Mrs X’s vulnerabilities. It also seems the children were aware of the risks to Mr and Mrs X and wanted to be considerate of this.
41. On 15 January 2021, the Council wrote to Mr and Mrs X to say that consent had not been given for the children to remain at home and they should be at school. The social worker said that she had discussed this with senior management.
42. Mr and Mrs X did not return the children to school between December 2020 to February 2021, when they returned to their mother’s care.
43. The Council says that at no point did the Council force Mr and Mrs X to return the children to school. But the Council says that the social worker, the school and the Virtual Head (responsible for promoting the education of looked after children) considered it was in the children’s best interests to be at school.
44. In January 2021, the Council agreed that the children would be returned to the care of their mother. It is not clear the exact date proposed but the Council has accepted that Mr and Mrs X were given an incorrect date initially.
45. Mr and Mrs X consider the social worker ‘turned’ against them when they challenged the decision to send the children to school. They consider the Council deliberately brought forward the plan to move the children to their mother because of this.

Finding

46. The Council accepts that a risk assessment would have enabled Mr and Mrs X’s concerns about Covid-19 to be weighed in the balance with the best interest of the children. I note the Council asked the fostering agency to do this. But it failed to do so.
47. In these circumstances, I consider that the Council should have carried out the risk assessment, before telling Mr and Mrs X to send the children to school. Mr and Mrs X were raising important concerns about their vulnerabilities to Covid‑19 and there needed to be a detailed consideration of this, alongside the children’s best interests. It is also the case that the children had raised a concern about Mr and Mrs X’s vulnerability to Covid-19 and it would have been reassuring to them for there to have been a risk assessment.
48. The risk assessment could also have looked at the online teaching the children were receiving and whether this provided appropriate education at this particular time, taking into account the school’s views.
49. Accordingly, I consider that the Council has been at fault.
50. However, although the Council did not give formal consent for the children to be at home between December 2020 to February 2021, it did not take any action to enforce this. So, the complainants’ injustice is that they feel that they were not listened to, or their concerns taken seriously.
51. I cannot see evidence that the children’s move to their mother’s was deliberately brought forward. In September 2020, the Council was considering returning the children and, by early January 2021 it was the confirmed care plan.
52. However, I will take into account that the arrangements for the move were mishandled when considering Mr and Mrs X’s injustice.

Complaint (3); the social worker made unfounded allegations about them and Complaint (4): the Council’s complaint investigation was flawed

53. These two complaints are inter-related.
54. The Council dealt with this complaint under its corporate complaint procedure. It could have chosen to use the statutory children services complaints procedure whereby there would have been an independent element and an expectation that the complaint would be discussed directly with the complainants.
55. But Mr and Mrs X were not complaining on behalf of the children, so it was appropriate for the Council to use the corporate process.
56. The Council says that it is at the discretion of the complaints officer to decide whether to speak to complainants. Once the complaint officer has seen the stage two request, if there is sufficient written information in the complainants’ request and in the Council’s records, complaint officers are entitled to reach their findings without any discussion with the complainants.
57. Mr and Mrs X were dissatisfied with the stage one. They wrote to the Council explaining that the government guidance also stated that:

“If there are significant health concerns about attending school or college and arrangements for supported home schooling are in place, then, with the agreement of the child’s social worker and Headteacher of the school, the child looked after or care leaver may learn at home”

58. The Council did not uphold the school attendance complaint because, among other things, the Council says the children wanted to return to school, B was becoming distressed by not being at school, the Council had evidence that the children were travelling by bus to attend activities, the children were aware of the Covid-19 protocol to protect Mr and Mrs X (changing their clothing and bathing on returning from school) and there were tensions in the home.
59. The Council recognised that Mr and Mrs X might have felt that their needs were not considered, and the Council apologised for this. But it concluded the decision for the children to return to school was in their best interests and was agreed to be so by all the professionals involved (although as noted the fostering agency was not in full agreement).
60. However, the Council accepted that there should have been a risk assessment, it said by the fostering agency, and that might have helped develop a risk management plan.
61. In this case, the Council do not consider the investigation was flawed because the complaint officer considered there was sufficient information in the case files, from the professionals and from Mr and Mrs X, recording their views, for the officer to be able to reach a sound decision.
62. Broadly, the allegations about Mr and Mrs X’s care of the children in the last year of the placement were:

• the children were made to wear masks when at home;
• lack of physical affection;
• children eating on their own;
• camera outside B’s bedroom; and
• an allegation that B had taken an article of clothing from Mr and Mrs X’s daughter.

63. The Council says that these concerns were discussed with Mr and Mrs X at the time. Mr and Mrs X say that these allegations were not discussed with them, and they have had no opportunity to challenge them.
64. Looking at the case documents, the Council raised a concern about the fact that the complainants had installed five cameras in the house. Mr and Mrs X explained that this was in case of intruders. It is recorded that Mr and Mrs X removed these, except for the external camera, when requested to do so by the Council. The Council did not consider B had ‘stolen’ any item of clothing. It was more a case that she had borrowed without asking.
65. It is recorded in the case files that Mr and Mrs X explained to the Council their concerns about catching Covid-19 and some of the measures they took to protect themselves, particularly from December 2020.
66. These allegations were ones which should have been considered by the fostering agency as a standard of care investigation. Mr and Mrs X told me that there was a meeting in May 2021 between the social worker and the fostering agency. They say it was decided that a standard of care investigation was not required.
67. Mr and Mrs X have continued to be registered as foster carers by the fostering agency and they continue to foster.

Finding

68. I recognise that complaint officers have the discretion to speak directly to complainants or not. However, it is important that complainants consider their complaints has been properly understood and therefore, as general guidance, we advise as good complaint handling that there is a discussion between the complaint officer and the complainants.
69. In this case, the complaint investigation at stage two relied upon written information. To the Council’s credit, there were detailed notes in the children’s case files and all statutory visits and reviews were carried out.
70. However, I consider that the stage two report, when listing the allegations, did not reflect fully the complainants’ explanations for the actions they took during the Covid-19 period or put their actions in the context of their genuine and informed fear (given the complainants’ age and ethnicity) of catching Covid-19.
71. The stage two report also recognised that a risk assessment could have devised a safety management plan, but it did not uphold the school attendance complaint in its absence even though government guidance recommended risk assessments. The stage two report also did not consider how such an assessment might have made a difference to the Council’s decision.
72. So, on the above grounds, my view is that the Council’s complaint investigation was flawed and raised allegations about the complainants which were not properly considered or put in context.
73. Accordingly, I consider that the Council has been at fault, and this would have caused avoidable distress.
74. In respect of the allegations, I am satisfied that the fostering agency has now dealt with these and has decided that Mr and Mrs X should remain foster carers. Therefore, Mr and Mrs X’s concerns about unfounded allegations being made has been resolved.

Complaint (5): the Council has not appreciated all the good care they have provided to the children

75. The Council says that it is indebted to its foster carers for the good care they provide to its looked after children. When foster carers are approved and managed by an independent fostering agency, the Council shows its appreciation through positive comments to their annual reviews of their care. This happened for Mr and Mrs X’s annual review of 2020 when the Council made positive comments about them.

Findings

76. I cannot say it is fault that the Council do not routinely send letters of appreciation to foster carers once the foster children move on. But foster carers are such a valuable and needed resource that the Council might wish to reconsider its approach.

How the Ombudsman remedies injustice caused by fault

77. The Ombudsman’s Guidance on Remedies makes the following points:
• for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
• there must be a clear and direct link between the fault identified and the injustice to be remedied;
• distress can include uncertainty about how the outcome might have been different;
• where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.

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Agreed action

78. I consider there has been some fault by the Council causing avoidable distress to Mr and Mrs X. To remedy this, the Council will, within four weeks of the final statement:
1. apologise to the complainants and make a symbolic payment of £450.00.
79. I had recommended the Council review its corporate complaint process. It has now done this, over a six week period, consulting partner agencies and the Ombudsman. The revised policy has now been approved. Accordingly, I have removed this recommendation.

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Final decision

80. There has been fault causing injustice. The Council has agreed the recommended way to remedy the injustice. I am therefore closing the complaint.

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Parts of the complaint that I did not investigate

81. I have not investigated any complaint about the social worker’s professional practice. These are matters which the complainants can refer to Social Work England, the social work professional body which investigates complaints about social workers and upholds standards of social work practice.

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Investigator's decision on behalf of the Ombudsman