Swindon Borough Council (18 001 459)

Category : Children's care services > Friends and family carers

Decision : Upheld

Decision date : 29 Jul 2019

The Ombudsman's final decision:

Summary: Mr and Mrs complained about the Council’s failure to arrange contact with their grandchildren who were the subject of care proceedings. They also complained about the way the Council handled their complaint about this and poor communication generally. The Ombudsman has found fault in the way the Council communicated with Mr and Mrs X and its complaint handling. To remedy these faults the Council has agreed to apologise and make a payment of £250 to reflect the injustice caused.

The complaint

  1. Mr & Mrs X complain about the Council’s failure to recognise and support them as grandparents to their two grandchildren who have now been taken into care with a view to being adopted.
  2. Mr and Mrs X also complain about the way the Council handled their complaint about this matter.

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What I have investigated

  1. The restriction outlined in paragraph six (below) applies to this complaint because part of Mr and Mrs X’s complaint is about events that took place in 2011. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion to investigate this aspect of the complaint for the following reasons:
  • Mr and Mrs X were aware of the problem in February 2011 and for the intervening years. I consider it was reasonable for them to have complained to the Council at the time rather than leaving it until more recently.
  • The Council has provided a case record of the meeting with the social worker and Mr and Mrs X in 2011 and an explanation about why it was unable to intervene in the way Mr and Mrs X expected. While I acknowledge Mr and Mrs X disagree with the Council’s position, there is little prospect of an investigation by the Ombudsman reaching a conclusive finding about whether events would have been different.
  1. My investigation has focused on events from November 2016 onwards, although earlier events are referred to by way of background information and context. Mr and Mrs X first complained to the Council in October 2017.
  2. I have not investigated Mr and Mrs X’s complaint about he viability assessment for the reasons set out in paragraph 69 below.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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)
  3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  4. 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)
  5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

  1. As part of my investigation I have:
  • considered the complaint and documents provided by Mr and Mrs X;
  • made enquiries of the Council and considered its response;
  • spoken to Mrs X; and
  • sent a draft version of this decision to both parties and invited comments on it. I have considered comments received in response.

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What I found

  1. Miss M is the daughter of Mr and Mrs X. Miss M has two young children, C and D. They were born in 2011 and 2014.
  2. In 2009, Mrs and Mrs X became estranged from Miss M, when she moved out of the family home after leaving school. Mr and Mrs X had concerns their daughter was in an exploitative, abusive relationship with a man and another couple. These relationships continued for a number of years. Miss M refused all contact with her parents until 2016.
  3. In September 2011, Miss M gave birth to her first child, C.
  4. In November 2011, Mr and Mrs X remained concerned about their daughter’s welfare and contacted the Council’s social services department. They met with a social worker. Mrs X says her concerns were not taken seriously by her and no action was taken. Although Mr and Mrs X have complained about this, it is a late complaint and so I will not investigate this for reasons set out in paragraph three above.
  5. Miss M gave birth to her second child, D in 2014.
  6. In 2015, Mrs X contacted the Council to request that a message be passed onto Miss M that her grandfather had passed away. It is unclear whether this happened or not. Again, Mr and Mrs X have complained about this but this is a late complaint (see paragraph three).
  7. In 2016, Miss M, C and D moved into a women’s refuge with the help of the Council. During this time, concerns were raised about Miss M’s ability to parent C and D. These concerns led to the Council making an application for a care and placement order. Both children were placed in foster care with Miss M having supervised contact.
  8. Miss M contacted her parents around this time and told them about her difficult circumstances. She was upset about being separated from her children who were now many miles away.
  9. In December 2016, Mrs X contacted the Council. She expressed a wish to see her grandchildren and offer support to allow the children to return to the care of Miss M. They say the social worker said she would consider the available options and contact Mr and Mrs X before she went on annual leave in the new year. This did not happen.
  10. In March 2017, frustrated by the Council’s lack of response, Mrs X contacted the social worker again. They were asked to provide photographs with a view to introducing them to C and D.
  11. In April 2017, a new social worker took over the case.
  12. She explained that as part of the court proceedings the Council was obliged to consider the long term future of C and D. One of the options under consideration was Mr and Mrs X providing a home for the children and Miss M, possibly under a Special Guardianship Order (SGO).
  13. The Council conducted a viability assessment to assess the suitability of them as carers. This assessment was carried out by a social worker and was based on one meeting with Mr and Mrs X and the history of case. The conclusion was that Mr and Mrs X were not suitable.
  14. In August 2017, the Court supported the Council’s proposal and made care and placement orders in respect of C and D. This meant the children would not be returning to Miss M’s care but would be placed for adoption or long term fostering. The judge had considered the viability assessment and heard oral evidence from Mrs X during the hearing although she was not a party to the proceedings, nor was she legally represented.
  15. Mr X and Miss M’s sister had meeting with C and D and Miss M in November 2016. Mrs X was unable to attend.
  16. Mr and Mrs X first complained to the Council in October 2017, although the Council did not send its final response until February 2019. This delay is considered in more detail later in this decision statement.
  17. Mr and Mrs X’s specific complaints are set out below, each followed by the Council’s response. Some aspects of their complaint were upheld and an apology given.

Failure to facilitate contact with C and D since they were placed in foster care

  1. Mrs and Mrs X say their requests to see their grandchildren have been ignored and no reason was given. They argue it should be in C and D’s best interests to have contact with their blood relatives, particularly as adoption was being considered.
  2. The Council explained that when making decisions about contact the primary concern is the welfare of the children and that it may not always be in their best interest to be introduced to previously unknown family members and for that relationship to then end.
  3. Because Mr and Mrs X did not have a relationship with C and D when they went into care, the Council took the view that it would await the outcome of the viability assessment before any introductions took place. Because the assessment was negative, the Council took the view that it would not have been fair on the children to commence a relationship if it was not possible to sustain it.
  4. In addition, C and D were displaying very difficult and challenging behaviour, which made any possible contact with Mr and Mrs X more difficult.

Failure to pass file onto police about alleged perpetrators of abuse

  1. Mrs and Mrs X had long standing concerns about the people Miss M was associating with. They say the judge had a similar view and instructed the Council to refer their files onto the police. They wanted confirmation this had taken place.
  2. The Council says it reviewed the transcript of the judge’s summing up from the final hearing and informed Mr and Mrs X was no such direction was given. But had it been, it would have complied.

Failure to update, keep informed and involve Mr and Mrs X in the future plan for their grandchildren

  1. In November/December 2016, Mrs and Mrs X contacted the Council and made it clear they were willing and able to provide help and support. Although a social worker would speak to her when she called, they were not kept informed about what was happening. They were not informed when C and D were removed from Miss M’s care shortly before Christmas 2016.
  2. The Council explained it was not possible to provide Mr and Mrs X with information because they did not have Miss M’s consent to do so. In order to proceed with the viability assessment, the Council had to obtain an order from the court.

Failure to provide information and advice about the best way to help support Miss M, C and D in December 2016.

  1. Mrs X asked for more details about becoming a Special Guardian when this was suggested by the social worker. The social worker failed to follow this up until three months later when she sent Mrs X a Department of Education Guidance note on SGO’s.
  2. The Council upheld this aspect of the complaint and agreed there was a delay of five weeks in early 2017. The reason given was the social worker’s high and demanding workload. The Council apologised for this.

Analysis

  1. When considering complaints about child protection matters, the Ombudsman may not act like an appeal body. I cannot question the merits of the decision the Council has made or offer any opinion on whether or not I agree with the judgment of the Councils’ officers. Instead, The Ombudsman focuses on the process by which the decision was made. A child protection investigation, and the action that may follow, will inevitably be distressing for any parent or grandparent. It is therefore important to try to ensure things are done properly.
  2. It is not the role of the Ombudsman to reinvestigate matters where a complaint has been upheld unless the outcome does not remedy the injustice or it is in the wider public interest to do so.
  3. In reaching my decision, I have read C and D’s social work records since 2011. While the majority of these records are not directly relevant to this complaint, having sight of them has assisted in my understanding of the complex background to this case and the input and monitoring that has taken place over the years from the Council.

Failure to facilitate contact with C and D since they were placed in foster care

  1. The children were placed in foster care in November 2016. Up to that point they had no contact with their grandparents and Miss M consistently said for many years that she did not want them involved in their lives. The Council was duty bound to honour this. The Council, in its complaint response has acknowledged it could have done more to challenge this but as this relates to events that took place too long ago I do not make any further finding about this.
  2. While I understand why Mr and Mrs X are frustrated and disappointed by the Council’s position on contact, it was a professional judgement the Council was entitled to make. It has explained the reasons why contact was not considered appropriate.
  3. The Council’s primary duty was to put the welfare of the children first and it has explained why contact at that point was not considered to be in their best interests. This decision is not one the Ombudsman is able to challenge.

Failure to pass file onto police about alleged perpetrators of abuse

  1. The Council has provided me with a transcript of the judgment from the final hearing in August 2017. This does not contain either an order or less formal instruction the Council to refer the matter to the police. Because of this I do not uphold this aspect of the complaint.

Failure to update, keep informed and involve Mr and Mrs X in the future plan for their grandchildren

  1. The records show Mrs X first contacted the Council on 14 December 2016 and it is recorded that Mrs X expressed a wish to be considered as a respite carer. I do note that Mrs X says she contacted the Council earlier in November 2016 and had a number of conversations with different social workers. The social work manager who took the call recorded that the “team would be advised about this”.
  2. The case was passed to the new social worker the following day. The handover note did not refer to the conversation she had had with Mrs X.
  3. Mrs X called again on 21 December 2016 asking to speak to the new social worker. There is no record of this being followed up. Mrs X says the next contact was when she contacted the Council in March 2017 but this is not recorded in the case notes. Mrs X says she was sent some information about Special Guardianship and asked to provide photographs.
  4. The next record is not until 6 April 2016 when the new social worker called Mrs X to introduce herself and make arrangements to carry out the viability assessment.
  5. It is recorded in the case notes that Mrs X felt frustrated, excluded and that she wanted to help her daughter and grandchildren.
  6. While the lack of communication with Mrs X was frustrating for her, in reaching my decision about whether or not this amounted to maladministration, I cannot ignore the wider context of this case. At that time Miss M had not given consent for the Council to share information with Mr and Mrs X and so there were real constraints about what could be discussed with them. Infact, the Council had to seek the permission of the court to discuss matters with Mr and Mrs X and to assess them as potential alternative carers
  7. In addition, there were significant day to day issues involving Miss M, C and D’s behavioural issues, contact between Miss M and her children, the foster placement and the court proceedings.
  8. From the time Mrs X first approached the Council to offer her help, it took approximately five months before she knew they has been assessed as not being suitable carers for C and D. In response to my enquiries the Council has acknowledged that “while the viability to consider grandparents as respite carers/Special Guardians could have taken place sooner, this would not have affected the outcome for the children”.
  9. While I am unable to criticise the Council’s decision about contact, this should have been properly communicated to Mr and Mrs X. There is no evidence on the case records that this happened and is fault. The Council should have made it clear to Mr and Mrs X why contact was not possible when it was first requested. Instead, they had to wait many months for the outcome of the viability assessment. Had the social worker explained the situation clearly from the outset, much of the uncertainty and frustration could have been avoided.

Failure to provide information and advice about the best way to help support Miss M, C and D in December 2016.

  1. Understandably they had asked the Council for more information about what options were available to them. All they received was an information sheet about Special Guardianship Orders that was downloaded off the internet in March 2017. There is no record of this in the case records, but Mrs X says this was sent in March 2017.
  2. The Council has already upheld this aspect of the complaint and apologised. It says there was delay of approximately five weeks in providing information.
  3. Mrs X is dissatisfied with this response and says it does not reflect the injustice caused.
  4. While I understand Mr and Mrs X’s frustration about this, Mrs X told the social worker in December that they intended seeking legal advice about the matter.
  5. Because if this I am unable to say they were caused any additional significant personal injustice by this delay. I am therefore satisfied that the apology already given is an appropriate remedy and the Ombudsman cannot add anything further here.

Complaint handling

  1. Mr and Mrs X first complained to the Council in October 2017. There was no delay in the stage one response although I note Mrs X was frustrated by the lack of acknowledgement.
  2. Mr and Mrs X requested their complaint be escalated to the next stage. In January 2018, the Council told Mr and Mrs X it may be difficult to take her complaint any further because Miss M had not given consent for confidential information to be disclosed. Mr and Mrs X repeated their request to have their complaint looked at again and the Council eventually provided a complaint response in August 2018. The Council apologised for the delay.
  3. Mr and Mrs X remained unhappy with what the Council had said and raised further questions. They did not receive a reply and so complained to the Ombudsman. After intervention by the Ombudsman, the Council replied in February 2019.
  4. It clearly took far too long to deal with this complaint. This served to add to the loss of confidence Mr and Mrs X already felt. While I accept the matter was complicated by Miss M not giving her consent, this does not account for the many months of unnecessary delay. The Council should have been clearer that while it was unable to deal with the complaint under the statutory process, it could be considered under the Council’s general complaint procedure.
  5. For these reasons, I have found there was fault in the Council’s complaint handing. I have recommended a suitable remedy below

Conclusion

  1. I can see from my scrutiny of the Council’s records there have been occasions when Mr and Mrs X contacted the Council about the matters complained about and the social worker did not respond. The delays in the complaint handling has not helped.
  2. This is disappointing and the frustration and upset caused to Mr and Mrs X is understandable when they were so desperate to help their family. The Council has accepted that it should have communicated better with Mrs X.
  3. While there is evidence of fault, in this context, the failure to keep Mr and Mrs X informed, in itself, did not cause them the significant injustice they complain about. The real injustice felt by them was a direct result of the lengthy estrangement with Miss M and the decision by the court to place the children for adoption.

Agreed action

  1. The Council has agreed to take the following action within four weeks from the date of my final decision:
      1. Apologise in writing to Mr and Mrs X for failing to communicate properly with them about the reasons why they were not able have contact with their grandchildren and its poor complaint handling
      2. Pay Mr and Mrs X £250 in recognition of these faults and the distress caused.

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Final decision

  1. There was fault by the Council in its communication with Mr and Mrs X and poor complaint handling. The Council has agreed to make a suitable remedy.

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Parts of the complaint that I did not investigate

  1. I am unable to investigate Mr and Mrs X’s complaint about the content of the viability assessment because it has been considered by the Court. Her complaint about the way the Council carried out the assessment could also have been put before the Court and so is also beyond the jurisdiction of the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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