Decision : Upheld
Decision date : 29 Mar 2017
The Ombudsman's final decision:
Summary: The Council was at fault for not supporting the complainants more when they faced challenges caring for a boy whom they were fostering. When that placement broke down the Council was further at fault in how it conducted a meeting which decided to take the boy’s brother into care also. The Council accepts these faults and it has apologised to the complainants. It has now also agreed to provide a further financial remedy which will provide a satisfactory remedy to the complaint.
- The complainants, whom I have called ‘Mr and Mrs B’, make several complaints about the Council’s actions when they were foster carers. Their complaints centre on events around May and June 2014. At the time they cared for two brothers, whom I have called Children ‘X’ and ‘Y’. Mr and Mrs B experienced difficulties with Child X’s behaviour and said they could no longer care for him. Shortly afterwards the Council decided to remove Child Y from their care also, although he later returned to their care under order of the Court. Mr and Mrs B have made two separate complaints to the Council, summarised that it:
- had a negative attitude towards them after they chose to adopt another child in their care (‘Child Z’); before the events described above;
- offered inadequate support caring for Child X; in particular surrounding their need for respite due to his difficult behaviour;
- made false accusations about their parenting and presentation leading to it removing Child Y from their care;
- allowed a social worker they complained about to have continued involvement in their case producing a report for a fostering panel;
- called a fostering panel that was biased against them;
- placed Child X in a household near to a close relative, which was insensitive;
- offered inadequate support while it suspended them from fostering for a time;
- conspired to discredit them as foster carers (through the cumulative effect of these events) and prevented them continuing in the role.
- Child Y also made a separate complaint to the Council complaining about his removal from Mr and Mrs B’s care.
- Mr and Mrs B also gave a letter to this office complaining at later events which led them to resign as foster carers in 2016. They said they did this as the Council presented an unfair report to fostering panel and did not allow them enough time to comment on it. They also say the Council did not offer them suitable fostering placements in the 12 months before the panel hearing.
What I have investigated
- My investigation only considers the complaints summarised at paragraph 1 above. I have investigated Child Y’s complaint separately. I explain at the end of this decision statement why I cannot investigate the complaint summarised at paragraph 3.
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 the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
- 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)
- 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))
- We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- Before completing my investigation and issuing this decision statement I considered the following:
- Mr and Mrs B’s written complaint to the Ombudsman and supporting evidence; this included details of their complaints to the Council, reports into their complaints, the Council’s reply and supporting paperwork;
- further information provided by Mr and Mrs B during the investigation; including that provided in a telephone conversation;
- information provided by the Council in reply to written enquiries;
- comments made by both Mr and Mrs B and the Council in response to a draft decision statement where I set out my thinking about the complaint; where appropriate I amended the final decision to take account of those comments.
What I found
- The Ombudsman received Mr and Mrs B’s complaint in May 2016. As noted above the events covered by the complaint took place around two years previously. It was therefore a late complaint.
- However I decided there were good reasons to investigate the complaint despite the passage of time. First, the events covered were not so long ago the Council would not have records of what took place. Second, I noted that before taking their complaint to the Ombudsman Mr and Mrs B had gone through a lengthy complaint procedure for complaints about children’s social care services (which I refer to below). They had then entered into more correspondence with the Council following the outcome of that complaint. I considered it would be unfair to penalise Mr and Mrs B for the time taken for this procedure to complete.
The investigation by the Council of Mr and Mrs B’s complaints
- As I noted in paragraph 1 there are various strands to Mr and Mrs B’s complaints. The Council considered these under the law specific to complaints about children’s social care services. In brief this sets out a three stage procedure for councils to follow. 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.
- Mr and Mrs B’s complaints were subject to two distinct investigations under that procedure. Both of those investigations went to ‘stage 3’ of the procedure.
- I see no reason to reproduce in detail all the findings of the ‘stage 2’ investigations. The reports produced were lengthy and detailed. Some of Mr and Mrs B’s complaints were upheld and some were not. Where complaints were upheld the Council did not challenge those findings. The ‘stage 3’ reviews did not make any significant changes to the findings reached at ‘stage 2’.
- I summarise that the key findings made during the investigations, which would lead us to find fault with the Council were as follows:
- That it failed to provide enough support to the couple, and Mrs B in particular, when Child X’s behaviour became more challenging over time. The complaint investigation implied the placement may have broken down in any event. But it implied the breakdown was more distressing and chaotic for all concerned than need have been the case. It placed some of the responsibility for that with the Council for failing to intervene or support sooner when challenges were obvious.
- The Council acted unreasonably when it went on to remove Child Y from Mr and Mrs B’s care following the breakdown of Child X’s placement. The stage 2 report made particular criticisms of a professionals meeting which took place in June 2014 leading to Child Ys removal from Mr and Mrs B’s care. It said certain statements were made about Mr and Mrs B’s house which were incorrect and there was conjecture about events which blurred with facts. It queried the decision to remove Child Y noting that he had lived with Mr and Mrs B for around 10 years with no previous concerns for his welfare.
- I considered first whether this office should conduct any further investigation into the complaints, which might lead to further findings of fault. I recognised that Mr and Mrs B had lost faith in the Council because of the events which led them to complain. They considered they were victims of an organised attempt by the Council to discredit them as Foster Carers leading them to resign from that role.
- I considered the significant failings highlighted above might have encouraged this view. I noted also the Council had opposed Child Z’s adoption preceding the events at the crux of this complaint. I also noted that Mr and Mrs B felt the Council exaggerated, invented or omitted records to paint a more negative picture of them. Mr and Mrs B also considered there were failings after the Council’s investigation of these complaints ended.
- But various factors led me to consider that further investigation in this case would be unlikely to lead to further findings of fault. First, I considered it unlikely I would find contrary evidence to that found by independent investigators where specific parts of complaint were not upheld. This was because those investigations were clearly thorough.
- Second, I considered investigation was incapable of resolving certain parts of the complaint that remained in dispute. For example, where there were differences between Mr and Mrs B about what they or social workers said in disputed conversations. There were also areas where Council officers and Mr and Mrs B had legitimate differences of opinion. For example while Mr and Mrs B remained aggrieved the Council opposed Child Z’s adoption, I did not think this made the Council’s stance wrong. The Council’s judgment differed to Mr and Mrs B about what was in Child Z’s interests at that time. But that did not make the Council at fault.
- Third, I considered that even if I found further evidence of fault this would be no proof the Council set out to discredit Mr and Mrs B. It would also not add to the injustice caused by the faults highlighted at paragraph 15.
- Fourth for reasons explained at the end of this statement I could not take a view on events post-dating these complaints.
The injustice caused to Mr and Mrs B
- I went on to consider the injustice caused to Mr and Mrs B by the Council’s faults summarised at paragraph 15 above.
- I considered first the Council’s actions caused distress to Mr and Mrs B. Some distress to Mr and Mrs B was unavoidable when the difficulties leading to the breakdown of Child X’s placement arose. But more vigilance by the Council to events might have lessened this.
- Further distress arose when the Council took Child Y into its care in June 2016. I consider some conflict and resulting distress was potentially unavoidable at that point given the Council had concerns for Child Y’s wellbeing. The Council also notes that neither the Court nor Child Y’s appointed Guardian criticised this decision at the time. But it is open to question whether the Council would have gone as far is it did if not for the faults the ‘stage 2’ investigation identified in the meeting which preceded that decision. I consider therefore there has to be some uncertainty about whether the Council would have taken that decision. Which no doubt led for more distress for Mr and Mrs B as well as the costs from the resulting court proceedings which I discuss below.
The remedy for Mr and Mrs B’s injustice
- As I noted above the Council accepted the outcome of the independent investigations into Mr and Mrs B’s complaint. It further accepted recommendations arising from the report. Some of these asked the Council to change procedures to avoid a repeat of the events leading to the complaint. But also the Council agreed it would:
- apologise to Mr and Mrs B;
- place a record on its file “that some of the information recorded in respect of [Mr and Mrs B] is not factual but based on opinion and inference”;
- make a financial contribution “to the family as a way of compensating them for the four months [Child Y] was not in their care”.
- I find the Council carried out the first of these actions when two of its senior officers met separately with Mr and Mrs B following its investigation of their complaint. I was unclear if the action arising from the second bullet point completed. I clarified with the Council that it would not usually keep the record of Mr and Mrs B’s complaint for as long as their fostering records. So this is something I wanted to the Council to address in remedying the complaint, a matter returned to below in the section headed “agreed action”.
- After correspondence between both sides the Council offered Mr and Mrs B £2500 in recognition of their “time trouble and distress”. It also offered to consider further any claim for their legal expenses saying the information Mr and Mrs B provided about these was difficult to follow.
- As part of my investigation I put information to the Council about Mr and Mrs B’s legal expenses which were around £12,000. The Council offered a payment of £1000 in recognition of these. It considered this fair noting that:
- The court proceedings which resulted in Child Y’s return to Mr and Mrs B’s care began in November 2013, before the breakdown of Child X’s placement. The Council had to apply to the Court to revoke a ‘freeing order’ which allowed it to potentially seek adoption for Child Y. This was because it no longer had plans to seek adoption for Child Y.
- Mr and Mrs B had legal advice before joining those proceedings and seeking an order returning Child Y to their care. They could have asked the Court to award their legal costs as part of those proceedings but chose not to.
- The Court expressly ordered Mr and Mrs B to contribute to a psychological assessment which formed part of the proceedings.
- It did not oppose the order that Child Y return to Mr and Mrs B’s care under a Child Arrangement Order in September 2014.
- I considered the Council made some valid points here. As I noted at paragraph 6 the Ombudsman cannot take a view on what happens in Court proceedings including the Court’s position on costs. I considered if Mr and Mrs B wanted payment for their costs then the proper place to raise this was in the Court. I could not consider substituting my judgment for that of the Courts.
- In response Mr and Mrs B said the final hearing where the Court returned Child Y to their care was rushed. This followed the Council’s decision not to oppose the order returning Child Y to their care. They also noted that when asked to pay towards the psychological assessment the Court limited their costs because of their financial circumstances.
- While I noted these comments, I also noted Mr and Mrs B confirmed they had legal advice at the time of the final hearing. So I did not consider this outweighed the argument advanced by the Council the Court could have considered their costs. I also did not consider I could attach any weight to the way in which the Court considered their financial circumstances in deciding on their contribution to the psychological assessment. That decision was clearly specific to that matter. I could not say what account it took of other costs Mr and Mrs B might have had associated with the proceedings.
- So the most I could do is support the view the Council should pay something in recognition of the uncertainty I identified in paragraph 24. In my view while the Council’s offer was clearly less than the costs Mr and Mrs B incurred it was fair to remedy that injustice. I also noted the offer did not take account of any separate injustice to Child Y which was the subject of his complaint.
- The Council agrees therefore that within 20 working days of this decision it will:
- Pay Mr and Mrs B the amount outstanding to provide a financial remedy of £3500 (comprising the £2500 previously offered and £1000 offered during this investigation).
- Clarify that it has attached a note to the professionals meeting which took place in June 2014 in line with the earlier recommendations made following its investigation of Mr and Mrs B’s complaint. It should provide a copy of that to Mr and Mrs B or else give them details about how they can visit its offices to check the note is on their records.
- For the reasons set out above I uphold this complaint. I find the Council acted with fault causing injustice to the complainants. But I also note the Council has offered what I consider is a fair remedy to the injustice. Therefore I have completed my investigation satisfied with its actions and on the understanding that remedy will complete in the next 20 working days.
- I could not investigate that part of the complaint summarised at paragraph 3 above. This is because we expect that usually the Council should have a chance to investigate and respond to a complaint before we investigate it. I recognised in this case the Council had some awareness of Mr and Mrs B’s dissatisfaction with the issues summarised in that paragraph. But Mr and Mrs B had not raised their dissatisfaction through its complaint procedure.
Investigator's decision on behalf of the Ombudsman