The Ombudsman's final decision:
Summary: The complainants, previous foster carers, complained about the way the Council dealt with an allegation from a foster child. The Council has already upheld some aspects of the complaint. We have considered whether the injustice caused by the faults has been properly identified and remedied. We have recommended additional remedial actions which the Council has agreed to take. We are therefore closing the complaint.
- The complainants, who I refer to as Ms X and Mr Y, complained about the way the Council dealt with an allegation from a foster child (B) against Mr Y. This allegation was made in February 2018, and it took thirty months before an independent Fostering Panel recommended that the complainants were de‑registered. There was also a delay in telling Mr Y that the allegation had been unsubstantiated by the Local Authority Designation Officer (LADO) responsible for considering allegations against those caring for children.
- On 9 December 2020 Ms X and Mr Y requested a stage two investigation under the Children Act 1989 three stage complaints process. The stage two report was completed on 14 June 2021. The report was detailed and thorough, upholding many aspects of the complaint and recommending service improvements and apologies for the upheld/partially upheld complaints.
- The complaint was considered by a Complaints Review Panel on 17 September 2021 and then by the Director of Children Services. On 21 October, the Director wrote to the complainants, accepting most of the Review Panel’s findings.
- The Director recommended an apology for certain complaints and stated that there would be a plan to follow up on the stage two recommendations for service improvements. The Council did not offer a payment for the complainants’ avoidable distress and time and trouble.
- Ms X and Mr Y complained to the Ombudsman because they considered there should be such a payment. They were also concerned that:
- the stage two investigating officer did not consider he could investigate the independent Fostering Panel’s actions;
- the stage two report highlighted that Ms X and Mr Y were not formally provided with B’s full history by the Council at the time of her placement, and the complainants say that they only discovered, after she had left, that she had been sexually abused previously (and only after Ms X had made a subject access request); and
- B later retracted her allegation in writing in September 2020. The stage two report concluded that the Council had considered this (and earlier inconsistencies in B’s allegation) properly and therefore this complaint was not upheld. The complainants remain concerned about this decision.
What I have investigated
- Normally we will not investigate complaints unless they were made within twelve months of when the complainant realised something had gone wrong. However, I have exercised the Ombudsman’s discretion to look at events from 2018 because the statutory complaint process has been prolonged.
- I have not investigated the Council’s Fostering Panel’s actions because Ms X and Mr Y appealed to the Independent Review Mechanism (IRM) in respect of the Council’s decision to de-register them. More details about this appeal, and how it affects the Ombudsman’s jurisdiction, is set out in the last paragraph of this statement.
The Ombudsman’s role and powers
- 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)
- If we are satisfied with an organisation’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 made enquiries of the Council and spoke to Ms X on the telephone and considered the written information provided by the complainants and the Council.
- Where we are satisfied that there has been a thorough investigation under the Children Act, which has considered key documents and events, the Ombudsman will not normally re-investigate and will accept the findings made. But we will consider complaints where there has been no finding, whether any injustice has been identified from faults found, and whether there has been a suitable remedy.
- 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
Child protection investigations and strategy meetings
- Working Together to Safeguard Children 2018 provides guidance on how councils should protect and support children. The document states that “whenever there is reasonable cause to suspect a child is suffering or likely to suffer significant harm, there should be a strategy discussion.” The purpose of the strategy meeting is to decide a plan of future action to safeguard the child’s welfare.
- If the strategy discussion concludes the child is at risk of, or has suffered, significant harm the Council must carry out a child protection investigation known as a Section 47 enquiry. If the threshold for significant harm is not met, but professionals think the child concerned needs additional support from the council, the child may be placed instead on a child in need plan.
- Children and young people may be in the care of a council either voluntarily under section 20 of the Children Act 1989, or by the family court making a Care Order and/or Placement Order.
Local Authority Designated Officer
- The Local Authority Designated Officer (LADO) is responsible for the management and oversight of allegations against people who work with children.
- Local authorities should ensure that allegations against people who work with children are not dealt with in isolation. Any action necessary to address corresponding welfare concerns in relation to the child involved should be taken without delay and in a co-ordinated manner. (Working Together to Safeguard Children 2018 paragraph 5).
- When an allegation is found to be ‘unsubstantiated’, it means that it can be neither proved nor disproved.
Minimum Fostering Standards
- 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.
- Standard 22.10 says, “Fostering services should ensure that a clear distinction is made between investigation into allegations of harm and discussions over standards of care.”
- The Council provides training to all its foster carers about safer caring and sessions includes information about children who may have been abused. Foster carers are also provided with a book published by the Fostering Network, although Ms X says that she was not provided with this.
- The Council has confirmed that Ms X and Mr Y attended the required training sessions.
- Ms X was approved as a foster carer to take up to three children. B was placed with Ms X in 2013, along with her brother. Another child was placed in 2017. Ms X also has a daughter.
- Mr Y moved into the property and was approved as a foster carer.
- In February 2018, B made an allegation of a sexual nature against Mr Y to a school friend, who reported this to school staff. The matter was referred to B’s social worker, to the Council’s LADO and to the Police. The Council held a strategy meeting. B was placed in an alternative foster home and Mr Y moved out of the property. Ms X says that she asked for B to remain because she felt it was unfair to move her in such an unplanned way and the child might see it as a ‘punishment’. But Ms X says the Council’s management decided the child should be moved. B’s brother remained for a couple of months until he was moved to an alternative foster carer. In June 2018, the other foster child was moved. Ms X says that she was willing to keep both children.
- The Police carried out a criminal investigation. B was unwilling to be medically examined or to give any further evidence during the Police interview. In May 2018, the Police decided that there was insufficient evidence against Mr Y, and they formally decided to take no further action (NFA).
- Mr Y moved back into Ms X’s property in June 2018. Ms X says that this was a difficult decision because she wanted to continue caring for the remaining foster child. But Mr Y was homeless and in a poor mental state. There was a five week delay in telling Mr Y that the allegation had been unsubstantiated. Ms X says that there was no explanation how this finding had been reached.
- The Council had to consider whether Ms X and Mr Y could remain registered foster carers. The matter was referred to the Fostering Panel, a multi-agency forum. In April 2020, the Panel recommended that Ms X and Mr Y be de‑registered. In August 2020, the Council’s Agency Decision Maker (ADM) approved the recommendation and Ms X and Mr Y were de-registered.
- In accordance with the Council’s procedures, it paid Ms X and Mr Y a retainer while they awaited the Council’s final decision on their fostering status, amounting to £65,965 for three children. Ms X and Mr Y say that they had to pay tax on this because they were not caring for any foster children. And the Council failed to tell them this, so they unexpectedly received a substantial tax bill. Ms X also says that they had a loss of income of £44.000 and have lost their future employment as foster carers. Mr Y’s business also suffered.
- Ms X and Mr Y had the right to appeal against being de-registered to the IRM and they did so.
- Ms X and Mr Y consistently denied any inappropriate behaviour by Mr Y. They also complained to the Council about the prolonged delay in dealing with their fostering status, the poor communication, a lack of consideration of relevant facts (especially the inconsistencies in B’s story), inaccurate information recorded, and breach of personal information.
- The IRM recommended de-registration, and the Council accepted that decision. Ms X says that the social worker lied at the IRM, saying that Ms X had received a placement plan at the outset and knew B had been previously abused.
The Council’s stage two findings
- The following complaints were upheld or partially upheld (using the complaint numbers in the stage two):
- (2) there was a delay in telling Mr Y that the allegation was unsubstantiated; (3) there was a delay in de-registering Ms X and Mr Y as foster carers; (4) (partially upheld): the complainants were made aware of B’s history (inappropriately), after she had been placed. But the Council failed to give this history prior to the placement;
- (6) there were some inappropriate and insensitive comments made in an email by the Chair of the Fostering Panel, which was wrongly sent to Mr Y;
- (7) (partially upheld): that there were inappropriate and unprofessional comments made by social workers;
- (9) there were inaccurate facts recorded in documentation;
- (10) (partially upheld): there was a poor stage one response; and
- (11) there was inaccurate and misleading documentation.
The Review Panel and subsequent actions by the Council
- The Review Panel considered the complaints which were not upheld or partially upheld. It decided that Ms X and Mr Y were supported during the initial investigation (complaint 1), that complaint (5) remained unresolvable, that complaint (8) should remain not upheld and complaint (7) (inappropriate comments) and complaint (11) (poor stage one) should be fully upheld.
- The Panel asked the Council to provide an action plan in respect of the recommended service improvements.
- The Council sent a further apology letter and produced an action plan.
Ms X and Mr Y’s comments
- Ms X and Mr Y had been considered good foster carers until B made the allegation against Mr Y. They find it hard to understand why her retractions were insufficient to persuade the Council that they should remain as foster carers. They say that the Council gave wrong information to the IRM (saying that Ms X had received a placement plan before B was placed) which they consider influenced the recommendation to de-register them.
- The complainants are particularly concerned that Ms X was not told of B’s previous sexual abuse. She says that she was only told she had been neglected and emotionally abused. Ms X says that, had she been told this, she and Mr Y would have taken certain extra precautions to protect Mr Y, including ensuring Mr Y was not alone with B. Ms X says the new foster carer has been advised not to allow her husband to be alone with B.
- Ms X says that, because of the Council’s faults, they lost their fostering work, Mr Y’s business suffered, and they were caused avoidable distress. Ms X had to make subject access requests to obtain necessary information.
- I am satisfied that the investigation under the Children Act was thorough, and I can rely upon its findings.
- I have considered complaint (5) about whether Ms X had been given a placement plan detailing B’s full previous history. A placement plan is an important document which would set out a looked after child’s history. Placement plans help foster carers to understand better the child’s history, needs and difficulties. On balance, I consider that, as there is no formal record of Ms X being given a placement plan, before B came to live with her, that the complaint should be upheld. The injustice is that Ms X will always be left wondering whether events may have been different if she had had this plan, with B’s full history, before she was placed.
- In respect of Ms X and Mr Y’s injustice, the faults identified would have caused avoidable distress and hurt feelings, particularly the inappropriate, insensitive and unprofessional comments. Ms X had been a reliable foster carer for many years and there had been no previous complaints about either Ms X or Mr Y. They also had to go to some lengths to obtain information to which they were entitled.
- I therefore consider that the Council should make a symbolic payment to recognise the avoidable distress and uncertainty to support the apologies provided.
- In respect of the delays by the Council in deciding whether the complainants should be de-registered, they were paid a retainer for the avoidable period of delay and this remedies any injustice caused. The fact the Council failed to tell them income tax would be due on this amount is regrettably but, whatever, this tax would have had to be paid and was a matter outside the Council’s control.
- Where there has been avoidable distress and uncertainty, the Ombudsman recommends symbolic payments between £300 to £1,000, depending on the severity and prolonged nature of the injustice and vulnerability of the complainant. Ms X and Mr Y say that a symbolic payment does not cover their lost wages. However, the Ombudsman cannot look at the IRM decision or the consequences of it. This is not part of this investigation. I can only consider the complainants’ injustice in respect of avoidable hurt, frustration and delay.
- In this case, I am considering the injustice caused by the faults identified.
- Within one month of the date of the final statement, I recommend that the Council;
a) makes a symbolic payment to Ms X and Mr Y of £750 for avoidable distress, hurt feelings and uncertainty;
b) apologise to Ms X that there is no evidence the Council gave her the placement plan before B came to live with her;
c) I am satisfied that the Council developed an action plan in respect of the stage two recommended service improvements. But, in addition, the Council should ensure that in future social workers mark the date a placement plan is given to a foster carer; and
d) introduce a target timetable for making decisions about whether a foster carer should be de-registered or not. It seems that twelve weeks from when a concern is raised to the ADM decision should be sufficient. Otherwise, foster carers are left in limbo for too long and the Council is paying a retainer. However, I recognise that there may be unavoidable delays caused by other agencies so the twelve weeks is a target date and may be extended; and
e) where foster carers are paid a retainer, but have no foster children in placement, ensure they are told that they will need to pay income tax on this.
- There is fault causing injustice to the complainants. The Council has accepted this and has agreed a remedy for their injustice and to make certain procedural improvements. I am therefore closing the complaint.
Parts of the complaint that I did not investigate
- The IRM provides panels that review suitability to adopt and foster and make recommendations to adoption and fostering providers. The Ombudsman considers that this is an appropriate way for complainants to challenge negative decisions made by adoption and fostering agencies. Therefore, we exercise our discretion not to investigate complaints about suitability where a complainant has, or had, the option of taking their concerns to the IRM.
- I have not considered the actions of the Fostering Panel because the IRM would have done so.
- Ms X and Mr Y have raised concerns about the professional practice of the social workers. The Ombudsman does not consider their individual actions or whether they met appropriate standards of professional practice. But the complainants can make a complaint to Social Work England, the social work professional body which oversees and considers concerns about social workers’ individual professional practice.
Investigator's decision on behalf of the Ombudsman