Summary: The Council upheld Mrs X’s complaint that it had failed to provide an appropriate foster service to her two foster children and to her and her partner. Mrs X remained concerned that the agreed actions and service improvements recommended had not been fully implemented and the Council had not remedied the injustice caused to the family by the faults identified. We recommended certain actions to deal with Mrs X’s outstanding concerns, which the Council has accepted. Therefore, we have completed our investigation and are closing the complaint.

The complaint

1. The complainant, a foster carer, whom I refer to as Mrs X, complains about the services provided to her two foster children (Y and Z) and to her and to her partner.
2. The Council investigated the complaints under the statutory Children Act 1989 complaints process, and in February 2023, the Council upheld all the complaints and accepted the recommendations and procedural improvements arising from the statutory investigation.
3. Broadly, the main upheld complaints centre around contact issues for the children with their birth family and the supervision of this, communication with the complainant, the frequent change of social workers and lack of visits by them to the foster children. The complainant says that she and her husband have been caused avoidable distress, time and trouble and frustration, and the children have been adversely affected by the poor service from the child in care team.
4. Mrs X is also concerned about improving social work practice for all children in care, and not just for Y and Z.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. Re 'Service Failure', the Ombudsman can also consider complaints of a service failure. The Ombudsman’s view, based on caselaw (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407), is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. We may conclude that service failure has occurred, causing an injustice, in the absence of any specific fault in the council’s policy or procedure.
7. This might be the case where there is an absence of key staff or the inability to recruit key staff or market forces prevent a statutory duty being delivered.  There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused.
8. 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)
9. 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 the final decision with Ofsted.

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What I have and have not investigated

10. I have not reinvestigated the complaints because there is a detailed investigation report and adjudication letter at stage 2 of the Children Act complaints procedure, and I am satisfied that there has been a thorough investigation. The issues which I focused on concerned the progress of the recommendations because the complainant was concerned that not all recommendations had been carried out. Several of these recommendations concerned procedural and practice improvements to the benefit of all looked after children and foster carers.
11. I also considered whether there should be a personal remedy for the complainant and the foster children.

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How I considered this complaint

12. I spoke to Mrs X on the telephone, made enquiries of the Council and Mrs X has commented on what the Council has said.
13. I issued a draft decision statement to Mrs X and to the Council and have taken into account their further comments before reaching a final decision.

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What I found

Looked after children

14. 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. Councils should have care plans for children in their care. These should be reviewed by a multi-agency forum, at least every six months or more if required. Professionals involved with the child will be invited to a statutory review so that information is collected before decisions are made about the child’s welfare.
15. A council should provide age-appropriate information to looked after children about how they can request an advocate.
16. Social workers should visit a child in care within one week of a new placement and, after this every six weeks, or more if requested.
17. Section 22(4) of the Children Act 1989 states that, before making any decision, a council shall, as far as is practicable, ascertain the wishes and feelings of the child, his parents and any other person whose wishes and feelings the council considers relevant.
18. Section 22(5) provides that, in making decisions, a council should give due consideration to those wishes and feelings, as they have been able to ascertain, having regard to the child’s age and understanding.
19. The Care Planning, Placements and Case Review Regulations 2010 (the 2010 Regulations) says that each child should have a permanence plan by the time of their second review. A permanence plan should be informed by multi agency contributions and will identify which option is the most likely to meet the needs of the child taking account of his wishes and feelings.
20. There is a presumption that there should be continued contact between the child and birth family. Contact should be focused and shaped around the child’s needs (2.78 statutory guidance accompanying the 2010 Regulations). The child’s welfare is always the paramount consideration, and each child’s wishes and needs for contact should be individually considered and regularly assessed.
21. All children who are in care of the council must be appointed an IRO. The IROs’ Handbook 2011 sets out their duties to safeguard and promote a child’s best interests.

The IRO’s Handbook 2011

22. The IRO is responsible to chair the statutory looked after child reviews at regular intervals.
23. A care plan should be prepared before a child is placed or, if not practicable, within ten working days of the start of the placement. The IRO handbook says that:

“The review of the care plan is one of the key components with the care process….the care plan for each child should specify how the local authority proposes to respond to the full range of the child’s needs, taking into account his/her wishes and feelings”.

24. The IRO, should, before every review, ensure that the child understands how an advocate could help and his/her entitlement to one.

Key events

25. Mrs X and her partner have been foster carers for some years. Two children were placed with them (Y and Z) in 2021. In early 2022, it was agreed that the two foster children should remain long-term with Mrs X and her partner. They have some supervised contact with a birth parent.
26. Initially, the foster children had an allocated social worker from the Council’s Court team. When the legal proceedings ended, and the Care Order made, the case transferred to the children in care team and a new social worker was allocated. But that social worker left and then there were problems with the allocation of a third social worker. In total, between the end of 2021 to mid-2022, the children had five social workers.
27. The Council delayed in arranging for the children to have passports. This meant that the family did not know for certain whether they could go on a planned holiday in the summer of 2022 until the last moment. This caused unnecessary anxiety, time and trouble and frustration.
28. Mrs X also complained that Y and Z’s contact with a birth parent was not supervised appropriately, and the contact supervisor did not challenge the birth parent’s inappropriate comments to Y and Z.
29. Mrs X made a formal complaint under the Children Act complaints procedure about the poor social work practice, and the negative impact this had on Y and Z. A children services’ manager met Mrs X and her partner to discuss their concerns. The Council felt that matters had been resolved in that there was a new allocated social worker, and the manager had agreed to contact the contact centre.
30. In July 2022, the IRO visited the children and agreed to arrange an advocate for them.
31. Mrs X was not satisfied with the Stage 1 complaint response, and she asked for a Stage 2 investigation.
32. In September, the children’s contact with a birth parent was suspended pending an assessment.

Stage 2 investigation

33. At the end of January 2023, the Stage 2 report was completed. In February 2023, the Council sent to Mrs X its adjudication letter on her complaints. It accepted the Stage 2 report and upheld the findings of fault. In March 2022, a Team Manager visited Mrs X and her partner to resolve matters. Mrs X says that she did not hear from the manager after this.
34. Broadly, the Stage 2 report made the following findings of fault:

• that the transfer between social workers was poor. The Council agreed that, ideally, transfers should be face to face, social workers should have a child friendly profile to send to the child, files should be updated with a transfer summary, impact chronology, child profile and care plan;
• that there was a delay in arranging passports for Y and Z. The Council agreed to advise social workers about the passport application and that foster carers should be reminded not to book holidays until a child had a valid passport;
• that Mrs X and her partner were not involved in important meetings or received feedback. The Council agreed that, where foster carers could not attend meetings, it should be recorded who would provide feedback to them;
• that the team manager at Stage 1 did not follow up on actions agreed. The Council agreed that managers from the child in care team would attend monthly meetings held with fostering representatives and managers, and child in care representatives would attend the monthly foster care forum;
• that Z and Y were exposed to inappropriate comments from a birth parent during supervised contact. The Council agreed that contact supervisors should be provided with the working agreement with birth parents so that they know what is considered inappropriate, that foster carers should be told how they can escalate their concerns, contact should be reviewed regularly, and contact schedules should be provided well in advance,
• that the Stage 1 response was inadequate. The Council upheld this complaint because the Stage 1 had not dealt properly with the concerns about the children’s contact with a birth parent.

35. Overall, the Council accepted that the changes in social workers, IROs and team managers contributed to the delay and drift and poor communication. The Council apologised to the complainants, and advised that they had the right to take their complaint to Stage 3, the Complaints Review Panel (the final stage of the complaints process).
36. Mrs X made a complaint to the Ombudsman. It is not clear why the complaint was not considered at Stage 3. We accepted the complaint as the complaints at Stage 2 had been upheld.

Changes to the Council’s social work practice

37. The Council tells me that it has improved its recruitment and retention of social workers, and that all children in care have an allocated worker. It primarily has a permanent workforce, rather than agency social workers.
38. The Council is working on child friendly profiles for social workers (and IROs), and it is ensuring all children in care have passports (personally supervised by the child in care service manager). The Council has a transfer checklist and five fostering representatives have been appointed. The IRO manager, team managers and contact manager attend fostering forums with staff from the special educational needs service.
39. The Council says that there is now a new contact arrangement for Y and Z. The contact supervisors cannot share notes of a birth parent’s visit to Y and Z, but the contact supervisor gives a verbal ‘need to know’ update to the foster carers.

Mrs X’s comments

40. Mrs X was concerned that the agreed service improvements were not being implemented. In particular, she did not understand why there was a delay in completing social workers’ profiles; that it was not clear how the Council prevents a child in care not having an allocated worker or how it covers sick leave; how the fostering representatives were selected (she would have liked to have been asked); that the birth parent interacts more with the supervisor than with Y and Z; that she had not received a policy regarding escalation of concerns about contact; that the contact supervisors had said that they will only intervene if the children are in physical danger; that the update after the contact session were inadequate and Mrs X considered the Council should ask the birth parent for consent to the disclosure of the contact notes.
41. Mrs X says that contact with the birth parent is the most challenging and that, by unnecessarily withholding this information, it makes their task of caring for the children more difficult.
42. Mrs X considers their poor experience as foster carers is not unique and the Council’s responses are ‘stock phrases’ to the concerns, which she has made.

Findings

43. All the complaints, which Mrs X made, have been upheld by the Council. My view is to also uphold all the complaints and therefore I find fault.
44. The key issue for us is what injustice has been caused to Y and Z, and to Mrs X and her partner, and are the service improvements being implemented.
45. On the balance of probability, it is likely Y and Z would have experienced some avoidable distress at the delays in allocation of social workers and delays in their visits, and the poor communication with them. Mrs X and her partner would also have been caused avoidable frustration and distress.
46. Mrs X’s wish to improve the care system for all children in care is important. My view is that the Council has listened to the concerns, and it is trying to improve social work practice. The Council’s Stage 2 adjudication letter illustrates its willingness to look at ways to improve social work practice for all its children in care. Its efforts coincide with the Government’s current review of the care and child protection system and the Council may benefit from the proposed Government’s changes.
47. It is also the case that it is known there is a shortage of social workers, and all councils have problems with recruitment and retention. The Council would have been affected adversely by this. We would see this as a service failure.
48. As part of this Government review, the importance of recruiting and retaining foster carers is a key objective. So, to achieve this, the Council should pay attention to Mrs X’s experience as a foster carer.
49. One of Mrs X’s main concerns is about Y and Z’s contact with a birth parent and how the Council deals with concerns about such contact from all foster carers. It is likely that for children in long-term foster care, who have contact with birth family members, that this contact in itself could be quite challenging for them, and foster carers, however well managed. It is important that, for the stability of these placements, the Council addresses these continued concerns.
50. Mrs X has also cast some doubt on how much the Council is abiding by the recommended service improvements. These service improvements are important for the benefit of all foster placements and it seems that there is some delay in achieving all the desired changes. But I do not have sufficient information as to say why this might be and, in any event, transforming services might take longer than envisaged. Ofsted also has some overall responsibility for inspecting the Council’s children services and we will inform it of our findings.
51. But it seemed to me that there was scope for further communication with Mrs X about her concerns, which would be to the benefit of Mrs X and Y and Z, and for other foster placements.

The Ombudsman’s guidance on remedies (2022)

52. When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults.
53. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
54. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.

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Agreed actions

55. Within one month of the final statement, the Council will:

• in respect of the avoidable distress and frustration caused to Mrs X and her partner, make a payment of £300.00;
• in respect of Z and Y’s avoidable distress, a payment each of £250.00, as well as an apology letter to each from a senior manager for the faults which have affected them;
• a senior officer will meet Mrs X to discuss her continued concern about contact arrangements, and other concerns, and the Council will consider whether it is possible to share the contact supervisor’s notes with Mrs X with appropriate redactions; and
• the Council will consider Mrs X’s wish to be a fostering representative.

56. The Council should provide us with evidence it has complied with the above actions.

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Final decision

57. The Council has agreed the ways to remedy the injustice caused by its faults. We have therefore completed our investigation and are closing the complaint.

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Investigator's decision on behalf of the Ombudsman