Summary: Ms X complains that the Council failed to deal properly with her complaint about the way it treated her as a foster carer, and failed to provide an adequate remedy for her. We find there was fault by the Council. It has already recognised some fault but it has not provided an adequate remedy. The Council has agreed to make a payment in addition to the action it has already taken.

The complaint

1. Ms X complains that the Council failed to deal properly with her complaint about the way it treated her as a foster carer and failed to provide an adequate remedy for her. She says she suffered distress and loss of income. She wants the Council to accept she was subject to bullying and to compensate her for lost earnings.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)

Back to top

How I considered this complaint

5. I discussed the complaint with Ms X and considered the information she provided. I considered the complaint documents. I considered relevant law, guidance and policies and the Ombudsman’s Guidance on Remedies. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final 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.

Back to top

What I found

Relevant law, guidance and policies

Statutory children’s social care complaints procedure

7. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. This involves an independent investigation at stage 2 by an independent Investigating Officer, overseen by an Independent Person.
8. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail. It lists those eligible to use the procedure. The list includes local authority foster carers, where the complaint is about certain statutory functions the council has in relation to the child, such as providing support to a child in need.

Council’s complaints procedures

9. The Council deals with complaints from foster carers differently depending on the nature of the complaint, as it explains on its website.
• Complaints about the Council’s Fostering Service not complying with agreed standards and processes are considered under its two-stage corporate complaints procedure.
• Complaints raised on behalf of a child or young person are considered under the children’s social care complaints procedure.

Allegations against foster carers and other people who work with children

10. The Local Authority Designated Officer (LADO) is a person responsible for managing and overseeing investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children.
11. The Council has a procedure for dealing with allegations against foster carers involving a referral to the LADO. The procedure applies where allegations are made or suspicions are raised that approved foster carers have:
• 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 indicates they may pose a risk of harm to children to a child;
12. Under the Council’s Inter-Agency Safeguarding Children Procedures the LADO will accept a referral if it meets the above criteria.
13. The National Fostering Minimum Standards 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 any allegations against them and given information about the timescale for completing the investigation.
14. The Council’s Fostering Allegations Policy 2021 says it “recognises the particular stress foster carers experience when they are the subject of an allegation” and understands “the very real impact of allegations on emotional wellbeing”.

What happened

15. Ms X has been a Supported Lodgings Carer and foster carer for the Council for several years.
16. In March 2021 Ms X made a complaint to the Council about the way she had been treated by certain members of staff from Children’s Social Care. She said that despite having been repeatedly commended for the quality of her work supporting young people, since January 2019 she had experienced several incidents of bullying, harassment, intimidation and unfair and unjustified criticism. She said this had undermined her as a professional and caused her a great deal of anxiety and distress.
17. In her complaint Ms X referred to nine separate examples, some of which contained multiple incidents such as a sequence of emails. The examples included:
• criticising her for her contacts with another professional supporting one of the young people in her care and for advocating for the young person;
• arranging a meeting with her to listen to concerns she raised on behalf of the young person and then using it to criticise her ways of working;
• making a referral to the LADO on the basis that she was “undermining management decisions” and “failing to understand the reasons as to why information was not shared with [her]” about why another child could not join an activity with the young people in her care;
• failing to tell her for several months about the basis for the referral or that it had been dismissed;
• wrongly telling her that if she decided to move to an independent fostering agency, the young people in her supported lodgings would be removed from her care.
18. Ms X said the outcomes she wanted from her complaint were:
• an apology;
• the Council to take disciplinary action against staff involved;
• compensation for constructive dismissal and loss of earnings as she had not felt able to take on another placement since the inappropriate LADO referral;
• the Council to change its practices.
19. The Council considered the complaint under its two-stage corporate complaints procedure. By the time of the stage 2 response in July 2021 Ms X had added another complaint. She had applied to join an independent fostering agency, ‘Agency 1’. She complained that in the letter of reference the Council had provided to Agency 1 it referred to her as having been “subject to LADO investigation”, when no investigation had taken place.
20. By the end of the complaints process, the Council’s response was as follows.
• It confirmed that some of the actions Ms X had been criticised for were in fact correct and were supportive of the young people in her care.
• It agreed one of the meetings she complained about was inappropriate.
• It said it was clear the referral to the LADO was not appropriate and did not meet the criteria for her involvement. The Council had failed to follow clear guidance about telling Ms X the reasons for the referral and giving her a ‘right of reply’. It apologised for these failings and the distress and anxiety caused. It assured Ms X there was no record on her file of any referral being made. However the Council did not accept the referral amounted to bullying or malpractice. It said it was satisfied the person who made the referral thought it was a reasonable course of action and then the LADO properly decided not to investigate it.
• It accepted it was wrong to tell her the young people in her care would have to move if she transferred to an independent fostering agency, and that it took too long to correct the information.
• It apologised for the content of the letter to Agency 1. It said it had re-written the letter to remove any mention of the LADO and explained to the Agency that it was a mistake to send the original letter.
21. The Council thanked Ms X for her work and apologised for the failings it had identified and the stress caused. It said the Council had “not always met its high standards in this case”. But it did not accept there were grounds for taking disciplinary action against staff or for paying her compensation for loss of earnings.
22. Regarding learning from the complaint, the Council said it was using the concerns Ms X had raised and the detailed information she had provided to help improve the Fostering Service. It said:
• the LADO was delivering training for social work staff about the criteria and process for dealing with referrals;
• it was working on an information pack about the LADO process for foster carers;
• it had spoken to individual staff involved in the events as part of their supervision so they could reflect on their actions.
23. Ms X was pleased the Council had recognised that the treatment she had received and the LADO referral were inappropriate. But she was not fully satisfied with the outcome of complaint. She wrote to the Council to explain why. She said:
• The Council had not addressed her original complaint of bullying in accordance with its ‘Dignity at Work (Tackling Bullying and Harassment) Policy’. She said this would have involved a formal investigation to decide if bullying or harassment had taken place, with disciplinary action taken if appropriate.
• It had not dealt with her complaint under the children's social care complaints procedure.
• She was not supported during the referral to the LADO. The referral was made in August 2020, but the Council did not tell her it was inappropriate and did not meet the criteria until May 2021 in response to her complaint. She believed the inappropriate referral amounted to malpractice.
24. When she did not receive a reply from the Council Ms X complained to the Ombudsman. She said she wanted the Council to:
• deal with her allegations of bullying in accordance with its Dignity at Work policy;
• consider her complaint under the statutory children’s social care complaints procedure:
• pay her compensation for loss of fostering payments since August 2020; and
• pay her compensation for the reference to Agency 1, which she said was defamatory.

Analysis

25. The Council has accepted significant fault. On the basis of the information I have seen I consider this caused a substantial injustice to Ms X which warrants a remedy. I do not consider the apologies offered and the action taken so far are sufficient to reflect the impact on Ms X of the Council’s actions. However the Ombudsman cannot achieve all the outcomes Ms X is looking for. I explain the reasons for my view below and recommend a remedy in the next section.

Bullying

26. The Council has accepted there were several instances where Ms X was treated inappropriately as a foster carer. It is not for the Ombudsman to rule on whether this amounts to bullying and we have no power to recommend disciplinary action against members of Council staff. Ms X wants the Council to carry out a formal investigation under its Dignity at Work policy. However, as I understand it this policy applies to employees. Foster carers are not direct employees of the Council. If the policy does cover foster carers, disciplinary and personnel matters are outside the Ombudsman’s remit. So I could not make a formal recommendation for the Council to apply the policy. However I have asked the Council to respond to Ms X’s request and let her know whether the policy applies to her.

Statutory children’s social care complaints procedure

27. Although foster carers are among the categories of people who may use the statutory procedure, Ms X’s complaint is not about the children’s social care functions referred to in the law and statutory guidance. Her complaint was mainly about the way the Council treated her, rather than about services the Council provided to the young people in her care. The Council says the complaint did not meet the criteria for the statutory procedure as Ms X was complaining about incidents that involved her in her role as foster carer. The Council did not have to deal with the complaint under this procedure and I do not consider the Council was at fault in deciding to deal with it under its corporate complaints procedure.

Compensation for loss of income

28. The Ombudsman cannot consider and award compensation in the way the courts do. If Ms X wishes to make a claim for compensation she would need to seek legal advice. We can recommend financial remedies which are symbolic payments intended to recognise injustice caused to a complainant as a direct result of fault by the Council. Ms X says she did not take on another foster placement because of distress caused by the way the Council treated her. But I do not have enough evidence to conclude there was a direct link between specific amounts of payments lost and the actions of the Council. Nor can the Ombudsman rule on whether a statement is defamatory. Again, that would be a matter for the courts.

Injustice caused

29. Nevertheless in my view Ms X has suffered considerable distress as a result of the Council’s failings over a long period of time.
30. The instances the Council has accepted amounted to unjustified criticism or unfair treatment occurred at various points in 2019 and in August 2020. They led Ms X to feel undermined and unsupported as a professional and uncertain and anxious about how to support young people in her care.
31. The referral to the LADO was made and justified on the basis that Ms X was perceived to be undermining management decisions and failing to understand information presented to her. There was no suggestion she had behaved in a way that presented any risk to a child. The allegation therefore clearly did not meet the threshold for a referral and, when it was examined, did not result in an investigation. The lack of explanation for the referral, failure to tell Ms X it was not being pursued until eight months later, and the lack of support offered was not in line with the Council’s own policies and procedures. Its Fostering Allegations policy recognises that allegations of this kind can have a significant impact on the emotional well-being of carers. In this case Ms X says it meant she had to keep defending herself and trying to set the record straight. It left her in a state of anxiety for far longer than necessary. She said she had difficulties sleeping and suffered a loss of appetite.
32. As a result of these incidents Ms X decided to move to an independent fostering agency. She then suffered further unnecessary anxiety through being told wrongly that if she did so the young people she was fostering would be removed from her care. It took the Council four months to confirm this was not the case.
33. The incorrect information in the reference letter did not prevent Agency 1 taking Ms X on, and the Council took action to rectify its mistake. But the Council’s actions caused unnecessary distress to Ms X, fearing her reputation had potentially been damaged in a new work environment.
34. Although I am not recommending a payment for lost income, Ms X also suffered uncertainty about whether the outcome might have been different. Without the fault by the Council she might have felt able to take on another foster placement.

Back to top

Agreed action

35. The Council has offered apologies, corrected records and explained the action it is taking to try and ensure the faults that occurred in this case do not happen again.
36. The Council has also agreed to my recommendation to pay Ms X £2,000 to recognise the avoidable anxiety and distress she experienced as a result of the faults identified. In recommending this sum I have taken account of the Ombudsman’s Guidance on Remedies. I consider the amount recommended is justified because the distress was severe and prolonged and Ms X’s reputation was called into question.
37. The Council has also agreed to pay Ms X £250 to recognise the time and trouble involved in pursuing her complaint. Ms X has had to complain to the Ombudsman to obtain a recommendation for a financial remedy.
38. The Council should make the payments within one month of the decision on this complaint.
39. I also recommended that within one month the Council should reply to Ms X to say whether its Dignity at Work policy applied to her as a local authority foster carer. It has confirmed to the Ombudsman that the policy did not apply to Ms X as foster carers are not employees of the Council. The Council should now write to Ms X directly to explain the position.

Back to top

Final decision

40. I have found fault by the Council in the way it dealt with Ms X as a foster carer, causing her injustice. I am satisfied with the action the Council has agreed to take to remedy the injustice and so I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman