Decision : Upheld
Decision date : 25 Apr 2018
The Ombudsman's final decision:
Summary: The Council investigated Mr B’s complaint about his leaving care support without fault. But the financial remedy it offered him was not enough and it has agreed to increase it.
- The complainant, Mr B, complains that the Council:
- Failed to properly investigate his complaint that he was abandoned without leaving care support in 1998-2000 despite being in foster care since he was 13.
- Failed to offer an appropriate remedy for the fault identified in the stage two investigation.
- Failed to keep proper records to allow investigation.
The Ombudsman’s role and powers
- 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)
- I have exercised discretion to consider events back to 1998 because Mr B has struggled to get access to his records from the Council to confirm he was in foster care. He was not able to register a complaint against the Council until November 2016.
- 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)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- Mr B has complained to the Information Commissioner’s Office (ICO) about lost files. It said that it is not going to take any further action because the Council has improved its records and did not recommend a remedy for Mr B. As the complaint about lost records was included in the stage two investigation and has not already been remedied by the ICO, I have exercised discretion to consider it.
How I considered this complaint
- I have:
- Read the papers submitted by Mr B and discussed the complaint with him.
- Considered the Councils comments about the complaint and the supporting documents it provided.
- Provided both parties with the opportunity to comment on a draft decision and considered their comments.
What I found
- 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, which includes the adjudication letter, they can ask for a stage 3 review.
- Where the presenting facts indicate that reasonable, appropriate consideration of the complaint has been undertaken at Stage 2 and that further consideration by the Review Panel would not produce a demonstrably different outcome, the Complaints Manager should discuss with the complainant the possibility of referring the complaint to the Local Government and Social Care Ombudsman (LGSCO).
- If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.
- The Council took Mr B into foster care in 1996 after he was abused by his mother. Between 1996 and 1998 the Council had regular social care review meetings and Mr B had regular involvement with social workers. As he got older he started to tell the Council that he no longer needed a social worker.
- Following a disagreement with his foster carer he moved into his own independent accommodation in April 1999. The records indicate that after he moved into his own accommodation the Council met with him and said it needed to complete follow-up visits and develop a leaving care support package. But there is no evidence of the Council putting this in place.
- A few weeks later the Council wrote to Mr B offering him a meeting if he wanted support. It said if he did not respond it would close his file. Mr B states that he did not receive this letter. The Council closed Mr B’s social care file in June 1999. The closure report states that the social worker visited Mr B’s property twice (but there is no evidence of this) and that he wrote to him without any response.
Events leading to the complaint
Mr B complained to the Council
- In February 2016 Mr B contacted the Council and complained that it took him away from his parents, abandoned him and then made no further contact with him. He said that he has since discovered that the Council has lost his file relating to his time in care. The Council explained that another Council may have his file because at the time he left care the Council’s boundaries changed. It said it could not register a complaint about his time in foster care because it did not have any records and directed him to complain to the ICO.
- Mr B remained dissatisfied with this and continued to complain to the Council. The Council then asked him to provide evidence from other third parties to prove that he had been in care. He provided a copy of a child protection report from his G.P which confirmed this in May 2016, but said that his G.P would not give him any further information.
- In November 2016, the Council found Mr B’s files as part of an archive reorganisation and invited him to make a subject access request to get the documents. It also said that it could now accept his complaint under the statutory children’s complaints process.
- The Council referred Mr B’s complaint to stage two of the children’s complaints process in February 2017. The independent investigator ‘the investigator’ contacted Mr B via email and phone to try and arrange an appointment to discuss the complaint. Mr B explained that he would find a meeting difficult and the investigator took a statement of complaint over the phone. The investigator then sent the draft statement to Mr B in March and he said that he accepted it but reserved the right to change it.
- The investigator was concerned that she needed to ensure that the statement of complaint was correct because it could not be amended. She therefore discussed what action to take with the Council and arranged to meet with Mr B in April. On the morning of the meeting Mr B contacted the investigator and said that he had ‘broken down’. Mr B also sent an email stating that he was finding it hard to continue with the complaint. The Council took advice from the Ombudsman of how to proceed and we advised that the investigator should continue with the investigation based on the statement of complaint that the investigator already had.
- The investigator confirmed the following statement of complaint. The Council:
- Did not act appropriately to ensure he was given guidance and support on leaving care.
- Lost the records relating to his time in care.
- Acted unreasonably by asking him to apply for access to his files when he had already done so.
- Pay Mr B a sum of money in line with LGO guidelines in recognition of the time and trouble he was put to as a result of their failure to locate his records.
- Pay Mr B a sum of money in line with LGO guidelines that acknowledges that he did not receive an adequate service when he left care in 1999.
- Offer advice and support to Mr B and if he wishes to take advantage of this, they should provide advice and guidance about his current situation to include debt management, seeking and retaining housing etc…
- Negotiate with Mr B and the section of the Council that is owed money by Mr B to reach a shared agreement about how the money is to be administered.
- Apologise to Mr B for the lost records and lack of limited support when Mr B left care.
- Review the system for storing historical records to minimise the chances of lost records in the future.
- Mr B states that the Council failed to properly investigate his complaint because it didn’t look at the substantive matter that the Council abandoned him. Mr B has been trying to complain about Council for a long period of time but has struggled because the Council could not find his records. This has caused Mr B considerable time, trouble distress and frustration; which was acknowledged in the stage two investigation.
- I appreciate that this resulted in Mr B struggling to engage with investigator to develop and agree on the statement of complaint. But the investigator and the Council did make sufficient attempts to try and agree the complaint statement with Mr B who also sought advice from the Ombudsman of how to proceed. We told the Council to develop a statement of complaint based on the information it already had; which is what it did and I cannot criticise the Council for this.
- In response to my draft decision Mr B states that the Council failed to consider his original complaint correspondence from 2015 or provide these documents to the Ombudsman. I asked Mr B to provide me with copies of these letters but he did not do this. I also went back and asked the Council to check its records and it states that it does not have any complaint correspondence earlier than February 2016. Therefore, it is likely that Mr B’s earlier complaints were made to the neighbouring Council and I cannot criticise the Council for not considering these documents or providing them to the Ombudsman.
- Mr B states that this resulted in the Council not investigating the core of his complaint. But after reviewing his complaint correspondence that we do have, his original files and the stage two investigation findings I consider that the investigation did properly consider Mr B’s complaint; it just did not use his preferred wording. If the investigator had re-worded Mr B’s complaint, as above, she would not have looked at any different files and it is unlikely that would she have reached significantly different findings. The stage two investigation upheld Mr B’s complaint that the Council did not do enough when he was a care leaver; which is the core of his complaint. Mr B also had the opportunity to provide any additional complaint documents to the stage two investigator and he also agreed the statement of complaint.
- Therefore, I am satisfied with stage two investigation, its findings and recommendations. But, after considering the original files, I do have some concerns about the remedy amount offered by the Council. Although there was different legislation in place at the time, the Council had a statutory duty to advise and assist. There is not enough evidence to show that it did this at a time when Mr B was vulnerable and needed support from the Council. It is unknown whether Mr B would have accepted the support or what the outcome would have been if he had accepted the support. But there is some uncertainty, distress and lost opportunity which the Council should remedy. Given Mr B’s age and vulnerability and the significance of the lost opportunity, £250 is not enough to remedy this fault and the Council should increase it.
- The Ombudsman’s guidance on remedies recommends a remedy payment for distress between £100 and £300. In cases where the distress is severe of prolonged, up to £1000 may be justified. Distress can include uncertainty, raised expectations, lost opportunity and undue stress, inconvenience and frustration.
- After balancing the legislation in place at the time, Mr B’s vulnerability and age and any uncertainty about outcomes. In this case, a £500 remedy payment for distress alone is appropriate in addition to £250 for time and trouble pursuing the complaint.
- Therefore, in recognition for the faults identified in the stage two report and above, the Council within six weeks of my final decision, has agreed to:
- Pay Mr B £750 for the time, trouble and distress he has experienced. The Council states that it will use this remedy to offset outstanding debt Mr B has with the Council.
- The Council investigated Mr B’s complaint about his leaving care support without fault. But the financial remedy it offered him was not enough and it has agreed to increase it. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman