Summary: The complainant, a foster carer, alleged that the Council wrongly removed her son from her care and failed over a prolonged period to consider properly her status as a foster carer. The Council investigated the complaint and found fault in the way it dealt with alleged child protection concerns. After an Ombudsman investigation, the Council agreed to refer the complainant to its Fostering Panel and the Council recently decided she should be allowed to continue as a foster carer subject to a further assessment and training. We have now considered the impact of the Council’s faults and recommended a way to remedy the injustice caused to the complainant.

The complaint

1. The complainant, a foster carer, whom I refer to as Mrs X, complained that in 2019 the Council wrongly removed her son, C, from her care and placed him with his father. C was subsequently returned to her care. In addition, the Council had not dealt properly with her fostering status, telling her she should resign but which Mrs X was unwilling to do. Mrs X says that she could not apply for any employment where an enhanced employment check was required because her fostering status remained undecided. Mrs X says that C was caused emotional harm, was subsequently unwilling to go out or see his father. She was caused avoidable distress.
2. A foster child, B, was also caused harm because he was removed from Mrs X’s home in an unplanned way. Mrs X also says that C and B had had a close relationship and were adversely affected by not being allowed to have continued contact.
3. The Council investigated the complaint under the Children Act 1989 three stage statutory complaint process, and upheld most aspects. The complaint was referred to the Ombudsman (our reference, 21 000 213) as an early referral, meaning that the Council upheld the complaint at stage two, and with the complainant’s agreement, referred the complaint to us rather than it being considered by a Complaints Review Panel (the third stage of the statutory complaints process).
4. I investigated the complaint -21 000 213-but could not determine the extent of the injustice while Mrs X’s fostering status was undecided. So, I discontinued the investigation while the Fostering Panel and the Council considered this.

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The Ombudsman’s role and powers

5. 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)
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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How I considered this complaint

7. I made enquiries of the Council in respect of the earlier complaint. The Council has decided that Mrs X can remain a foster carer, subject to an assessment as a single carer, and training. I have discussed the complaint further with Mrs X, now that she has the Council’s decision, and obtained further information from her about how she considers she and her family have been adversely affected.
8. I issued a draft decision statement to the Council and to Mrs X and have taken into account their further comments when reaching my final decision.
9. I am not investigating the Council’s actions in relation to B because Mrs X does not have parental responsibility for him, and she had requested that he was moved.

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What I found

Councils’ duties to support, protect and accommodate children in need and at risk

10. Under section 47 of the Children Act 1989, if a local authority has reasonable cause to suspect a child is suffering, or is likely to suffer, significant harm, it shall make or cause to be made such enquiries they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare,
11. The statutory guidance-Working Together to Safeguard Children 2018-says that the purpose of an assessment is to decide whether a child is a child in need or is suffering or is likely to suffer significant harm.
12. Where a child is considered to be at risk, a council should take protective action and this may involve removing a child from his/her home. Often this can result in a child being placed with a relative, or with foster carers.

Fostering services

13. The Fostering Services: National Minimum Standards 2011 says investigations into allegations against carers should be “handled fairly, quickly and consistently in a way that provides effective protection for the child, and at the same time supports the person who is 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.
14. 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.”
15. Under the Assessment and Approval of Foster Carers (amendment to the Children Act 1989 guidance and regulations) a foster carer may at any point give written notice that they wish to resign, in which case their approval is automatically terminated 28 days from receipt of the notice. This does not prevent the fostering service forming a view about the person’s future suitability to foster.

Allegations against those who care for children and vulnerable people

16. The Local Authority Designated Officer (LADO) is responsible for the management and oversight of allegations against people who work with children.
17. 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).
18. Those working with children or vulnerable adults must have an enhanced employment check. Those considered unsuitable will be placed on the Disclosure and Barring Service (DBS) register.

Events of this complaint

19. As the Council has accepted fault, I am only providing a brief chronology.
20. Mrs X was a foster carer with her partner. At the time of this complaint, Mrs X and her partner were looking after a teenage foster boy, B, and their older teenage child, C. B’s placement was reported to be going well. Later in 2019, Mrs X ended her relationship with her partner and her mother became seriously ill. It was noted that Mrs X was very stressed, and this was adversely affecting C and B. Mrs X told the Council that she considered she could no longer care for B.
21. In October 2019, Mrs X’s partner left the family home. Some six weeks later at the end of November, Mrs X’s partner made a safeguarding allegation about her care of the children. Mrs X says that this was because things were not going his way. The Council decided that B should be moved to an alternative respite foster placement and C should also be removed while there was an assessment of the child protection concerns. It was decided that C would be removed from his school during a lesson. It seems that C’s father was encouraged to take C during school hours, and also the social workers knew he did not have appropriate accommodation. Mrs X says that C’s father took him to a pub while he looked for somewhere C could stay. C’s father placed C with a relative whom he barely knew. C’s school said that they were instructed by the social workers to let C’s father to take him out of school.
22. Later two social workers visited Mrs X to explain what had happened. The social workers failed to make any note of this visit. Mrs X says that she was told to have no contact with C, and they took some of C’s possessions. She subsequently contacted the children services’ out of hours service in her home area (area Y). Following conversations between area Y and the Council, C returned home the next day in accordance with C and his father’s wishes.
23. In mid-January 2020, the LADO held a meeting and decided that further investigation was required given the allegations. In March it was decided that the allegation of emotional abuse to B was substantiated but other concerns were not. Mrs X was not told this until the beginning of May 2020. Mrs X was then told that there would be a review of her fostering status and that this would be completed in October 2020. The Council apologised for this delay.
24. The Fostering Team decided that Mrs X should be allowed to discontinue as a foster carer in light of the LADO’s decision. Mrs X raised concerns about the accuracy of the information relied upon.
25. In February 2021, there was a fostering review meeting. Mrs X was told that she was no longer considered suitable to foster. There was some confusion about whether Mrs X would resign or not. In April 2021, Mrs X confirmed that she would not resign from fostering until the Fostering Panel had considered her case. It seems that the Council made no effort to set up a Fostering Panel, Mrs X believes that it was hoping she would resign.
26. It is recorded that B and C told the Council they were distressed by being suddenly separated and that they had wanted to continue to have contact. It seems that the Council made no attempt to set up this contact.
27. In November 2020, Mrs X complained to the Council about the above matters. The stage two independent report identified several failings and poor practice, including a failure to consider the validity of the safeguarding allegations (in accordance with the Council’s child protection policy), inadequate supervision, failure to maintain accurate records and a failure to consider B and C’s wishes and feelings.
28. There were also delays in completing the complaint process.

The Council’s November 2021 decision on Mrs X’s complaints

29. The Council upheld Mrs X’s complaints that it did not manage a child protection referral properly which resulted in C being wrongly removed from Mrs X’s care and placed with his father.
30. Broadly, the other main complaints upheld were as follow:
1. social workers acted without consideration for C’s wishes and feelings, and failed to follow internal child protection procedures, instructing and helping the child’s father to remove him from school during a lesson against his wishes. C’s father then took him to stay with an aunt, whom he barely knew, because the father was homeless. The social workers also failed to make a note of their visit to Mrs X;
2. social workers removed C’s clothes and belongings from Mrs X’s home against his wishes and instructed Mrs X not to speak to her son and the Head of his school was told to remove C’s mobile telephone;
3. social workers failed to tell the neighbouring council’s Multi Agency Safeguarding Hub (MASH) in the area Mrs X lives (area Y) until Mrs X contacted them;
4. the Council failed to provide factually correct answers in response to Mrs X’s complaint;
5. following Mrs X’s initial complaint, the Council failed to apologise or tell Mrs X of any changes to prevent this happening again to someone else and it failed to provide the children with any explanation. There were also delays in the complaint process;
6. C was not provided with an explanation or apology, and this has meant he had difficulty in getting over this traumatic incident;
7. Mrs X was treated unfairly and felt ‘bullied’ by staff when pointing out the errors made by the Council (with qualification that feeling ‘bullied’ has different connotations); and
8. the Council partially upheld the complaint that B and C had lost a significant relationship.
31. The Council did not consider it could determine Mrs X’s claim that the Council’s faults had had a massive impact on her family and friends. But it accepted the procedural improvement recommendations from the independent investigation: broadly, that the social workers needed further training, there should be apology letters sent to Mrs X and C, arrangements to be made for B and C to see each other, and B to be provided with an explanation to why he was removed and how this should have occurred. It was also recommended that there was a review of child protection procedures and training.
32. The independent investigation noted that the Council was in the process of reorganising its children services and that it was hoped the fostering and social work teams would be more integrated.
33. In December, the Council wrote to Mrs X and to C apologising for the errors. Mrs X says she was paid an eleven weeks’ fostering retainer after B was removed. But she has received no further payments.
34. Mrs X considered that the Council failed to recognise the avoidable harm and distress caused by its faults and it has not provided an adequate remedy. In addition, the Council did not place any further foster children with her, telling her to resign, which she did not wish to do. Therefore, Mrs X says she has missed out on fostering payments and says she has been unable to apply for any other caring jobs, while her fostering status remained undecided, and the LADO decision remained.

Injustice

35. The Council’s decision now is that Mrs X should be allowed to continue fostering subject to further assessment as a single carer and training.
36. Mrs X has recently decided that she does not want to continue fostering and has formally resigned. However, Mrs X says she has been adversely affected by Council’s delay in reaching a view on her fostering status because she has now decided to rent out a bedroom, and she could have done this sooner but for the delay.
37. Mrs X says C was traumatised by events and was reluctant to see his father, to go out and was embarrassed to return to school. Mrs X had counselling, but C did not want this.

Findings

38. I endorse the findings made by the Council already made. In addition, there has been an unacceptable delay in determining Mrs X’s fostering status.
39. It is probable that C would have been harmed by the poor handling of the alleged child protection concern and being removed without warning from his school and home. The period of removal was short-lived, but Mrs X says there has been a long-term impact. On the balance of probability, the faults would have impacted on C and made him more anxious and insecure for a period of time.
40. In respect of Mrs X, she was understandably angry about how C and she were treated by the social workers and by their failure to follow child protection guidance. In addition, Mrs X has suffered avoidable distress and frustration by the poor communication, by the delay in the LADO telling her its decision, the fostering status delay and delay in dealing with her complaint.
41. Now that Mrs X has resigned from fostering, I cannot conclude that she has missed out on fostering placements by the Council’s avoidable delay in determining her fostering status. I also consider Mrs X could have rented out a room at her house without having the Council’s decision on her fostering status.
42. In addition, Mrs X says that she has also been prevented from applying for any caring jobs because future employers would have wanted to know why her fostering status was undetermined. I accept that, and that she would have required a clear employment record to work with vulnerable people and children. So, I consider that there may have been lost opportunities to work. However, I note that, since having the Council’s positive decision on her fostering status, it does not seem that Mrs X is actively looked for other caring employment.

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Agreed actions

43. 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.

44. While the removal of C from home was short-lived, I consider that the impact would have had some longer lasting impact. Therefore, I have looked at the higher end of the Ombudsman’s tariff. So, to remedy the identified injustice, the Council has agreed, within one month of the final statement, to:

• make a symbolic payment of £1,000 to C for his injustice with an accompanying letter explaining that the Council recognizes the longer term impact on him by its faults;
• make a symbolic payment of £1,000 to Mrs X for her avoidable distress, frustration and lost opportunities; and
• the Council has accepted that there was an unacceptable delay in determining Mrs X’s fostering status and child protection procedures were not followed. The Council has looked at ways to ensure these faults do not recur. The Council will tell me what it has done to improve practices since this complaint.

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Final decision

45. The Council has accepted fault. I have now considered the resulting injustice and recommended ways to remedy this, which the Council has accepted. Therefore, I have completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman