Decision : Upheld
Decision date : 08 Jan 2021
The Ombudsman's final decision:
Summary: Mrs X complains about the Council’s handling of a child’s placement into her care. She says the Council failed to correctly assess the needs of the child and did not put the child’s needs first. Mrs X says the Council did not adequately address the impact of its actions on her, her family and the child. She says the Council’s actions caused avoidable distress and financial loss to her. We have found fault by the Council in this matter and the Council has agreed a remedy to address the injustice caused.
- Mrs X complains about the Council’s handling of a child’s placement into her care. She says the Council:
- Failed to correctly assess the needs of the child and failed to put the child’s needs first;
- Failed to understand or act against the risks to the child;
- Failed to adequately plan for the child’s future;
- Failed to maintain positive relationships with herself and her husband, and
- Incurred delays in the handling of her case and her complaint.
- Mrs X also complains about the conduct and competency of individual social workers.
- Mrs X says the Council has not adequately addressed the impact of its actions on the child, her husband and herself. She says it has also not made adequate provision to assist her financially.
- Mrs X says the Council’s actions have caused avoidable distress and upset to the child and to her. She also says she has incurred financial loss and has had to make changes to her home.
What I have investigated
- The Council upheld the complaints listed at paragraph one. It says it has made changes and improvements to its processes and will continue to build on these improvements. I have investigated the injustice caused to Mrs X and the child and whether the Council adequately addressed the fault it identified.
- The final section of this statement explains my reason for not investigating the complaint stated in paragraph two.
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)
- 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)
- 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)
- 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.
How I considered this complaint
- I have discussed the complaint with Mrs X and considered the information she provided.
- I have made enquiries to the Council and considered the information it provided.
- I have also considered The Children Act 1989 and Statutory Guidance: Getting the best from complaints.
- Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.
What I found
The Children Act 1989
- A Looked After Child is any child or children subject to a care order under section 20 of the Children Act 1989.
- Councils have a duty under section 22 of the Act to safeguard and promote the child’s welfare. To achieve this, all looked after children should have a care plan, which councils must regularly review.
- The council must also appoint an Independent Reviewing Officer (IRO) to every looked after child. An IRO should be an experienced social worker who ensures the council is prioritising the child’s needs and interests.
- The council must hold looked after child reviews to oversee implementing the care plan, check progress and make any necessary changes. The council should hold reviews as often as necessary.
- A special guardianship order is an order appointing one or more individuals to be a child’s special guardian. It is an order intended for children who cannot live with their birth parents and/or who would benefit from a legally secure placement.
Children’s social care statutory complaints procedure
- The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review panel to be held.
- The regulations place a duty on the local authority to act promptly to ensure the complaint is dealt with as swiftly as possible. Getting the best from complaints says
- the complaint should take a maximum of 20 working days at stage 1;
- the stage 2 investigation should take a maximum of 65 working days, and
- a maximum of 30 working days may be taken to convene and hold a stage 3 Review Panel.
- If a council has investigated something under this procedure, we would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
The Council’s Children’s Representations and Complaints Policy
- Section 2 of this policy refers to the Council’s standards when dealing with complaints about Children’s Services.
- Paragraph 2.4 of the policy says “All information related to complaints should be stored by the complaints manager and not recorded on children’s case files.”
- Mr and Mrs X were foster carers. After leaving the care of Mr and Mrs X, one of the foster children they previously cared for had a child. I will refer to the child as Child A.
- In late 2015, the Council removed Child A from their parents because of concerns about their wellbeing. The Council placed Child A in the care of Mr and Mrs X under section 20 of the Children Act 1989.
- The Council carried out an initial parenting assessment in early 2016. It decided it was not appropriate for Child A to return to their parents.
- In July 2016, Child A’s parents withdrew their consent to place Child A with Mr and Mrs X.
- The Council carried out another parenting assessment in mid-2016 following the withdrawal of consent for section 20 placement. Following this review, the Council decided Child A should return to their parents with a supervision order.
- The matter was heard in court in August 2016. The court directed that a parenting assessment should be provided as part of the court process.
- Mrs X complained to the Council in September 2016. She said the Council had not listened to her concerns about Child A’s contact with their parents and extended family.
- In November 2016, the guardian for the court proceedings reported concerns about the Council’s plans to return Child A to their parents.
- A further parenting assessment was completed by the Council in December 2016. This assessment was agreed by the court and contained specific questions set by the court in a previous hearing. The subsequent report recommended a care plan of adoption for Child A because of the risk of harm if Child A was returned to their family.
- In January 2017, the Council decided Child A should be placed for adoption. It provided a statement to the court confirming this decision.
- In February 2017, the guardian for the proceedings said they could not support the Council’s plan to place Child A for adoption. Mrs X says this is because Child A had formed a strong attachment to Mr and Mrs X during the time Child A had been in their care. The guardian recommended Child A remain in the care of Mr and Mrs X.
- Mr and Mrs X agreed to continue to look after Child A. In April 2017, the courts granted a special guardianship order to Mr and Mrs X. The Council created a two-year special guardianship support plan and told Mr and Mrs X they could contact the Council for further support after this ended.
Mrs X’s complaint
- In November 2017, Mrs X complained to the Council. She raised several concerns about the Council’s actions, similar to the complaint made in September 2016. She said the Council had placed Child A at risk and had failed to act on concerns about their safety. She said the Council had not prioritised Child A’s needs and interests and this had caused potential harm to the child. Mrs X also said the Council’s assessments were incomplete and did not accurately depict the situation regarding Child A’s interaction with their parents.
- In January 2018, the Council held a meeting with Mrs X to discuss her complaint.
- In March 2018, Mrs X escalated her complaint to stage 2. She said the Council had delayed providing a letter to Child A as agreed in the stage 1 meeting. She also said the letter contained mistakes.
- The Council began its stage 2 investigation in July 2018. In November 2018, the stage 2 Independent Investigator produced their report. It grouped Mrs X’s complaints into five headings as follows:
- The Council failed to keep Child A safe and failed to understand the risk to their wellbeing;
- The Council’s planning for Child A’s future wellbeing was inadequate;
- The Council failed to assess Child A’s needs and their relationship with their parents and extended family;
- The Council’s intervention and decision making was delayed and/or misjudged, and
- The Council failed to maintain positive relationships with Mr and Mrs X.
- The Independent Investigator upheld all complaints made by Mrs X. It recommended the Council apologise to Mrs X and that only experienced workers carry out parenting assessments for consideration in court. It also recommended the Children’s Services department reconsider Child A’s needs and provide help to Mrs X as required. The report also recommended the Council give appropriate financial support to Mr and Mrs X.
- In December 2018, the Council gave its response to the stage 2 investigation. It apologised to Mrs X and said it had made several improvements relating to its decision-making, supervision and care planning processes. It also said it had recruited additional social workers, reduced caseloads and provided training to its officers.
- The Council told Mrs X she was entitled to receive support for herself and Child A. It also said Mrs X was entitled to an assessment to access additional direct support through the Adoption Support Fund.
- In January 2019, Mrs X asked the Council to escalate her complaint to stage 3. She was not satisfied with the apology from the Council and remained uncertain that similar mistakes would not happen again. Mrs X also complained about the way she had been portrayed by some of the social workers involved with the case.
- Mrs X said the Council should provide compensation for remedial work to support Child A. She also said the Council had failed to recognise the impact of its actions on herself and her family. This included converting a downstairs room to a bedroom to provide enough space to accommodate Child A. Mrs X also self-funded a therapeutic parenting course so that she could provide support to Child A.
- The stage 3 independent panel met in May 2019. It agreed with the findings of the stage 2 Independent Investigator and upheld all Mrs X’s complaints. The panel report made the following recommendations:
- “The Local Authority embeds the actions it is already undertaking to address the issues raised by this complaint;
- The Local Authority provides the complainant with a written explanation for the decisions/actions taken for the child which would appear contradictory and confusing to them if they access their case files later in life;
- The Local Authority develops and implements a complaints process and procedure which has a robust element of independence starting at the earliest stages and is compliant with regulations. The Local Authority takes up the complainant’s offer to inform the new complaints process and procedure;
- The Local Authority has in place a whistleblowing process and procedure which is independent of children’s social care practice; and is promoted to all staff and carers as a child protection failsafe;
- The Local Authority addresses the ‘fitness to practice’ of the social worker and Social Work Manager who did not manage allegations […] with sufficient care for the safety and wellbeing of the child;
- The Local Authority promotes the authority of the Independent Reviewing Officers;
- The Local Authority makes arrangements to fund the complainant’s current […] diploma course.
- The Local Authority makes arrangements to fund the cost of creating a downstairs bedroom […];
- The Local Authority makes arrangements to fund compensation for the complainant’s time and resource attempting to establish communication/progress the complaint, and
- The Local Authority sets aside a pot of money for therapy for the complainant to access on the child’s behalf in the future.”
- The report also identified the Council had not complied with the statutory complaints procedure because a complaints officer was not present on the panel.
- The Council provided its response to the stage 3 report in June 2019. It said it had continued to build on the improvements set out in its stage 2 response. It also said it was unable to provide a clear rationale and explanation for its actions because some of the staff who had made decisions on its behalf no longer worked for the Council.
- The Council said it would review its procedures regarding stage 3 panels and acknowledged it had not adhered to the specified timeframes. The Council said it would need more information about the training course Mrs X was studying, and that Mrs X may be able to apply for financial support.
- The Council also offered to pay Mrs X £500 in recognition of the time spent and upset caused.
- Mrs X remained unhappy with the Council’s response and brought her complaint to us.
What happened next
- In July 2020, the Council wrote to Mrs X to apologise for not paying the £500 offered as part of its stage 3 response. The Council made the payment to Mrs X.
- Mrs X returned the £500 and told the Council she had not accepted this offer.
- I have decided to exercise discretion and investigate the injustice caused to Mrs X and Child A dating back to 2017. This is because the Council upheld Mrs X’s complaint in 2019 dating back to this period. My investigation focusses on whether the Council adequately addressed the fault it identified.
- The Council has set out in detail its findings and has upheld Mrs X’s complaints. Therefore, I have not further investigated the actions which led to the complaint as it is unlikely that we could add to the Council’s previous investigation.
- The Council has itself identified failings in how it dealt with Child A’s case as part of its review of Mrs X’s complaints. It says it has taken positive action to address some of the faults identified to ensure that similar mistakes do not happen again.
- Whilst it is positive the Council has identified fault in its actions, I must consider whether the remedy it offered adequately addresses the injustice caused.
Was there fault in the complaints process?
- The Council held a meeting to address Mrs X’s stage 1 complaint. Whilst I find no fault in this, the Council has no records of the meeting. There are no notes to show what was discussed, and no record of any outcomes or actions agreed by the Council. This does not comply with the Council’s complaints policy and I therefore consider this to be fault.
- The evidence shows there was delay at every stage of the complaints process. Mrs X made her stage 1 complaint on 23 November 2017. The meeting with the Council was held on 9 January 2018. The stage 2 complaint was made on 18 March 2018 and the response was made on 14 December 2018. Mrs X requested escalation to stage 3 on 18 January 2019, and the Review Panel met on 30 May 2019.
- I acknowledge the Council says some delays were caused by difficulties in finding a suitably experienced, independent investigator. Nevertheless, the time taken to progress the complaint is far greater than the timescales specified in the statutory guidance. I therefore consider the delays incurred in handling Mrs X’s complaint constitutes fault.
What is the injustice?
- The injustice caused by the delays in the complaint handling are frustration, distress and time and trouble taken by Mrs X in progressing her complaint.
- Mrs X says the injustice caused by the fault identified as part of the Stage 2 and Stage 3 investigation is –
- offence and distress at the way Mrs X and her husband were treated. She says there was a lack of communication from the Council and apparent bias against her by some Council officers;
- financial responsibility for caring for Child A until they are 18 years old. She says the Council refused to help with support to manage Child A’s attachment/trauma issues. Mrs X has also self-funded a therapeutic parenting course to learn how to best assist Child A;
- the requirement to convert one of her rooms into an extra bedroom to provide enough space to accommodate Child A;
- the impact on Mr and Mrs X and their wider family by continuing to care for Child X;
- uncertainty about whether the Council can ensure similar mistakes do not happen again;
- the impact on Child A of not being placed for adoption. Mrs X says Child A may have been better placed with a younger family, possibly with other children;
- the lack of explanation to Child A by the Council about how and why it made its decisions. Mrs X says this is important for when Child A is older, and
- the likelihood that Child A will require therapy in the future.
The remedy offered by the Council
- The Council responded to the 10 recommendations made at stage 3. The Council has not carried out all these recommendations, but says it has –
- apologised to Mrs X and Child A;
- carried out a number of improvements in its processes;
- recruited more social workers and reduced caseloads;
- provided training to social workers and arranged for further training to be delivered;
- said Mrs X is entitled to receive support for herself and Child A, and can be assessed for additional direct support through the Adoption Support Fund;
- made changes to the way Children’s Services complaints are handled;
- updated its foster carers handbook so it now includes a whistleblowing policy, and
- offered £500 to Mrs X for the time and trouble in dealing with the complaint.
Is the remedy appropriate?
- I consider it is appropriate that the Council apologised to Mrs X and Child A. This was provided in its stage 2 response.
- I consider it is also appropriate that the Council makes a payment to recognise the time and trouble taken by Mrs X in pursuing her complaint. However, I acknowledge that Mrs X declined the offer of £500 and returned this payment.
- It is positive the Council has made changes to its processes in relation to decision-making, supervision and care planning processes. It is also positive that it has employed extra social workers, reduced officers’ caseloads and provided training to its staff. However, I acknowledge Mrs X escalated her complaint to stage 3, and then to us because she felt these steps were not successful.
- The primary way of ensuring such mistakes do not happen again is to embed the lessons learned from this case into the Council’s procedures. Therefore, I consider the Council’s actions to amend its processes so that similar mistakes may be avoided in the future is appropriate.
- However, having reviewed the stage 2 and stage 3 findings, and the recommendations made by the stage 3 panel, I do not consider the remedy offered by the Council adequately addresses the injustice caused to Mrs X and Child A.
- To address the injustice identified, the Council has agreed to take the following action:
- Within six weeks of the final decision, the Council makes a payment of £1,000 to Mrs X for the time and trouble taken to progress the complaint through the statutory process. This is also to recognise the delays incurred at each stage of the process.
- Within six weeks of the final decision, the Council makes a payment of £1,000 to Mrs X for the distress, upset and frustration caused by the Council’s actions. This includes the Council’s comments about Mrs X and its apparent failure to acknowledge and listen to her concerns about Child A’s safety during unsupervised visits.
- Within six weeks of the final decision, the Council provides us with an explanation and evidence of the changes and improvements made to its processes to ensure similar errors are not repeated. This includes its amended complaint handling process, and the changes to its processes in relation to decision-making, supervision and care planning.
- On the production of evidence of costs to the Council, the Council pays a contribution of £2,000 to Mrs X for the adjustments required to convert a room in her house to a bedroom.
- On the production of evidence of costs to the Council, the Council pays for the costs of Mrs X’s therapeutic parenting course.
- The Council adds copies of the stage 2 investigation report and adjudication, the stage 3 panel report and adjudication, and our final decision to Child A’s record for their future reference.
- I have found fault by the Council in this matter and the Council has agreed a remedy to address the injustice caused. I have therefore concluded my investigation.
Parts of the complaint that I did not investigate
- I have not investigated Mrs X’s complaint about the conduct or competency of individual social workers.
- We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
Investigator's decision on behalf of the Ombudsman