Decision : Upheld
Decision date : 17 Oct 2021
The Ombudsman's final decision:
Summary: Mrs X complained about how the Council responded to an allegation her husband, Mr X, hurt a child they were caring for. The Council failed to properly record how it decided not to temporarily place the children with their aunt. This caused Mr and Mrs X and the children in the household uncertainty. The Council will pay Mr and Mrs X £200 and place this decision on the children’s records. The Council will also remind its staff they must make suitable records of its safeguarding decisions and how they are in a child’s best interests.
- Mrs X complained about how the Council responded to an allegation her husband, Mr X, hurt a child they were caring for. The allegation resulted in the child, Y, and Y’s siblings being removed from their care. In particular, Mrs X complained the Council:
- did not properly make the decision to immediately remove the children from their care;
- did not refer them for appropriate support after the allegation;
- delayed in telling the Local Authority Designated Officer (LADO) about the allegation;
- did not tell them the outcome of its investigation into the allegation; and
- did not properly explain it would investigate her complaint using two different processes.
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 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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 considered:
- all the information Mrs X provided and discussed the complaint with her;
- the Council’s comments about the complaint and the supporting documents it provided; and
- the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
What I found
Relevant law and guidance
- Councils are responsible for the safeguarding and wellbeing of all looked after children in their care. There are a number of ways that children become ‘looked after’ by a council. One is when a court grants a care order. This is when the judge decides to place the child in the care of the council for their safety and wellbeing.
- When a child can no longer live with their parents, there are a range of possible arrangements that can be made for them. Family and friends foster care is where the council places a child in need with a family member or friend of the family. The foster carer is subject to the same checks as a professional foster carer and receives an allowance.
Safeguarding and allegations
- The Council is part of the Hull Safeguarding Partnership (the Partnership). It includes the Police and a local NHS Clinical Commissioning Group. The Partnership works together to co-ordinate safeguarding work for children in the Council’s area. As the body responsible for safeguarding, the Ombudsman considers the Council retains authority over the Partnership’s safeguarding decisions.
- Section 47 of the Children Act 1989 says where a council has reasonable cause to suspect a child is suffering, or is likely to suffer, significant harm, it should make enquiries to decide whether it should take any action to safeguard and promote the child’s welfare.
- In practice, once a council receives a referral that a child may be at risk of significant harm, it should make initial enquiries to determine the level of harm the child may be facing. The council can hold a strategy meeting with other professionals. As part of the meeting, the lead authority must see the child and record their views. The meeting should involve sharing of relevant information and consider whether Section 47 enquiries are needed.
- The statutory guidance, ‘Working together to safeguard children’ requires councils to consider children’s best interests before acting.
- The Local Authority Designated Officer (LADO) is a person responsible for the management and oversight of investigations into allegations that somebody who works with children has behaved in a way that may pose a risk to children. This includes foster carers. The investigation should work alongside the safeguarding process.
- The Fostering Services National Minimum Standards (the Standards) says investigations must be handled quickly, in a way that effectively protects the child and supports the person subject to the allegation. The foster service should also ensure the person is informed of progress during and after the investigation.
- The Standards also say councils must provide independent support to persons subject to allegations. The Council uses a charity, The Fostering Network to provide support to its carers.
- The statutory children’s complaint process was set up to give children and those representing them an opportunity for a thorough independent investigation of their concerns. The Children Act 1989 Representations Procedure (England) Regulations 2006 specify what can be considered using the statutory complaints process. Child protection issues are largely exempt.
- The statutory process has three stages:
- Stage 1 - local resolution by the council.
- Stage 2 – an investigation by an investigating officer who will prepare a detailed report and findings. The investigation is overseen by an independent person to ensure its impartiality. The council then issues an adjudication letter which sets out its response to the findings.
- Stage 3 – an independent panel to consider their outstanding issues.
- Mr and Mrs X are the great aunt and uncle of three looked after children. The children moved in them in 2019 under a family and friends foster carer arrangement. The children are under the care of the Council, Mr and Mrs X live in an area administered by a different council, Council B.
- The placement was challenging and in October 2019, the Council agreed the children’s aunt, Ms Z, could help care for them during the day as respite. Ms Z received a Disclosure and Barring Service (DBS) safety certificate in November 2019. A record from December shows the Council was considering allowing Ms Z to progress to having the children overnight, although it had concerns about her father, who lived with her.
- In early January 2020, Mr and Mrs X told their fostering social worker they wanted a night away in late January, felt Ms Z could care for the children and confirmed her father would not be at home. The fostering social worker asked the children’s social worker if she agreed to the respite. Mr and Mrs X repeatedly chased the children’s social worker for a response but did not receive one.
- In late January 2020, the date Mr and Mrs X were going away overnight for respite, one of the children, Y, told his School that Mr X had grabbed and pulled him while inside their home. The School observed bruises on Y that it felt were severe. It made a safeguarding referral to the Council.
- The Council held a safeguarding strategy meeting attended by managers from its children’s and fostering departments, a nurse, staff from the School, and Police. Before the meeting, Mr and Mrs X called to say Mr X had grabbed Y to prevent him running in between parked cars. The meeting considered:
- the differing accounts given by Y and Mr and Mrs X;
- the effect of Y’s medical condition on whether the bruises would appear worse; and
- that the manager from the Council's fostering team felt Mr and Mrs X had a good relationship with all three children.
The Council decided to begin Section 47 enquiries and put a safety plan in place over the weekend. The Police agreed to start an investigation.
- After the strategy meeting, Mrs X called the children’s department manager. She explained she and Mr X were out all day and overnight and the children were due to stay with their aunt. She offered to return home but the manager said it was not necessary until the Council made its decision about what should happen.
- The children’s social worker and an officer from the Police visited Y at school, spoke to them and looked at some bruises on their skin. Y reiterated their version of events. The Council considered that information as well as information there had been other concerns about Mr X’s behaviour with Y.
- The Council decided the risk to Y was significant enough that it should removal all of the children from Mr and Mrs X’s care immediately.
- The Council arranged for the children to move to a new foster placement that evening. The Council explained its decision to remove the children to Mrs X, who said she wanted them to come back. The Council told her to seek legal advice.
- In early February 2020, the Council completed its Section 47 enquiries. It consulted with Police and decided the allegation was substantiated.
- Mr and Mrs X say the children’s social worker wrongly told them they should speak to Foster Talk for support. They say a couple of hours before Mr X’s interview with Police in March 2020, the Council told them they should have been speaking to The Fostering Network. Foster Talk therefore withdrew their support for the interview. Instead, Mr X used a duty solicitor provided by the Police. The solicitor advised Mr X to accept the caution, which he did. Mr and Mrs X say The Fostering Network later told them they would not have advised Mr X to accept the caution.
- In response to my enquiries, the Council told me it had confirmed Mr and Mrs X had spoken to The Fostering Network but had not realised they were not using the service for support after the allegation. It has reminded all staff they must refer carers to the The Fostering Network within 24 hours of an allegation. It had a pack of information to give to carers subject to an allegation but did not give it to Mr and Mrs X. It has updated the information pack and reminded staff to ensure they give it out.
- The Council made a referral to Council B’s LADO in late April.
- In early May 2020, the Council held a meeting with the LADO from Council B. The meeting found the allegation was substantiated. The Council said it would look at why the referral to the LADO was delayed and consider training for staff. It says it communicated the outcome of the investigation to Mrs X within the week. In mid-July 2020, the Council wrote to Mr and Mrs X to confirm the outcome of the LADO investigation.
- Mrs X complained to the Council in late March 2020. She complained about issues at the start of the placement and during it and also said:
- Mr X had moved Y away from the door so he would not be knocked over. She felt Y may have been bruised playing the night before;
- the Police and children’s social worker did not agree removal was necessary; and
- the children’s social worker failed to properly direct them to independent support after the allegation. This led to them relying on the solicitor’s advice to accept the Police caution.
- the children were due to stay with their aunt the evening they were removed so the Council did not need to remove them from her home immediately; and
- the Council had not properly considered the effect of Y’s medical condition on his bruising.
- it was satisfied it responded to Y’s allegation appropriately;
- it could not comment on whether the children’s social worker incorrectly referred them to legal advice because she no longer worked for the Council; and
- it had considered the effect of Y’s medical condition.
It said Mrs X should request a stage three response in 20 working days. Mrs X did not respond.
- The investigating officer (IO) finished their report for the Council's stage two statutory complaint response in early November 2020. The report noted Mrs X had made a corporate complaint about how the Council carried out its child protection duties and how it supported them after removing from their care. Nonetheless, the IO investigated:
- whether the Council considered if it could place the children with their aunt while the Section 47 investigation was underway; and
- if the Council properly considered their account of the incident when deciding to end the placement. The IO also considered whether the Council provided appropriate support to Mr and Mrs X following the allegation.
- the Council had considered whether it could leave the children in the care of Ms Z. It had been unable to confirm whether she had a DBS certificate or whether the Council had assessed her as suitable to care for the children overnight; and
- the Council did not tell Council B’s LADO about the allegation.
Response to allegation
- The Ombudsman cannot question a council’s decision if it is made without fault. In considering allegations, the Council's primary responsibility is the safety of the children it is responsible for. Once the Council received the safeguarding referral from Y’s School, it held a strategy meeting with relevant professionals and spoke to Y. It considered Y’s and Mr and Mrs X’s account of the incident, the impact of Y’s medical condition on the severity of his bruising and the views of the professionals in the meeting. The Council properly considered the relevant information when deciding to end the placement. There was no fault in its decision, so I cannot question it.
- ‘Working Together to Safeguard Children’ requires councils to consider children’s best interests before acting. Having assessed their best interests, the Council could have decided removing the children in the evening was the best or only option. It would not have been at fault solely because it decided to take that course of action.
- The IO report stated the Council staff responsible for responding to the Section 47 enquiries could not confirm if the Council had decided Ms Z was suitable to care for the children overnight and if she had a DBS certificate. It therefore decided to remove the children immediately and place them with foster carers. Safeguarding decisions can have significant consequences and the Ombudsman therefore expects them to be properly evidenced. The Council has no records to show how it considered the suitability of Ms Z and whether it would have been in the children’s best interests to stay with her overnight or while the Section 47 enquiry was ongoing. This was fault. However, given the Council's concerns about leaving the children with Ms Z overnight, I cannot say that but for the fault, the Council would have made a different decision. The injustice is therefore uncertainty for Mr and Mrs X. The fault also caused the children injustice in the form of avoidable uncertainty on whether a potentially less traumatic option was available.
- Further, I note the Mr and Mrs X told the Council of their intention to leave the children with Ms Z overnight in early January while they went away for respite. They made repeated attempts to get agreement from the Council but did not receive a response. The Council had not confirmed Ms Z was suitable to care for the children by January. It should therefore have considered what action, if any, it needed to take to ensure the safety of the children. The Council was at fault for failing to do this. This did not cause Mr and Mrs X or the children a significant injustice as they did not stay with Ms Z, but I consider a recommendation is needed to prevent such a fault occurring again.
Support following the allegation
- The Standards state councils must make independent support available to persons subject to allegations. The Council uses The Fostering Network to provide that support. Mr and Mrs X say the Council wrongly told them to use Foster Talk for support. There are no records the Council told Mr and Mrs X to speak to Foster Talk instead of The Fostering Network. However, the Council accepts it did not give Mr and Mrs X proper written information and did not confirm they were using The Fostering Network for allegation advice. I therefore consider the Council was at fault for failing to properly direct Mr and Mrs X to the appropriate service.
- Mr and Mrs X say the Fostering Network told them they would not have advised Mr X to accept the caution. They feel the Council's failure to properly direct them to the Fostering Network meant Mr X accepted the caution when he should not have done and that this led to the Council's decision not to return the children to them. I cannot confirm what advice The Fostering Network would have given at the time. I also cannot know whether it would have changed the outcome of the Police case or the Council's decision. The injustice to Mr and Mrs X is uncertainty and distress. The Council has taken appropriate action to prevent the fault occurring again by reminding staff they must refer carers to The Fostering Network and updating the written information it provides after allegations.
- Mrs X complained the Council delayed in referring the allegation to Council B’s LADO. The IO’s report wrongly stated the Council did not refer the case to the LADO. The Council referred it in April 2020, around three months after Y made the allegation. This was a significant delay and was fault. The Council has completed the recommendation in the IO’s report, which is suitable to prevent the fault occurring again.
- Mrs X says the Council did not tell her the outcome of its investigation into the allegation. The Council says it contacted Mrs X verbally with the outcome within a week of the allegation meeting in April 2020. It confirmed its decision in writing two months later. The Standards say the fostering service (Council) should keep the person subject to an allegation informed of progress during and after an investigation. I consider the delay of over two months in sending the written outcome is not in line with the Standards and fault. This delay, combined with the delay in starting the LADO investigation meant there was almost six months between the date of the allegation and the end of the investigation. The undue delay caused Mr and Mrs X avoidable distress.
- The Guidance says councils can use their discretion to include child protection issues in a statutory complaint if the person is also complaining about eligible issues and the council feels it will achieve the best outcome for the complainant.
- The Council accepted Mrs X’s entire complaint under the process in April 2020. When it later identified part of the complaint was about child protection, the Council told Mrs X it would consider the child protection issues using its corporate complaint procedure. The Council did not consider whether it could have achieved a better outcome for Mrs X by continuing to use the statutory process for the entire complaint. This was fault.
- The Council wrote to Mrs X to explain its decision. I do not consider the letter to be sufficiently unclear to warrant a finding of fault. I nonetheless welcome the efforts the Council has made to improve its complaints letters and processes following Mrs X’s concerns.
- Although the Council decided to use the corporate procedure for Mrs X’s child protection concerns, its stage two statutory investigation still looked at them. This was fault and caused Mrs X avoidable confusion.
- Within one month of the date of my final decision, the Council will:
- apologise to Mr and Mrs X for the distress caused by the faults identified in this decision;
- pay Mr and Mrs X £200 total in recognition of that distress; and
- place this decision in the children’s care records so they can access it in the future.
- remind staff they must make proper records of their decisions in safeguarding enquiries and how they are in the children’s best interests; and
- ensure staff are aware of the Council’s discretion to consider child protection complaints under the statutory children’s complaints procedure.
- remind staff they must respond promptly to information that may impact on a child’s welfare.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.
Investigator's decision on behalf of the Ombudsman