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Birmingham City Council (16 004 272)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 09 Mar 2017

The Ombudsman's final decision:

Summary: Mr C was unhappy with the way he and his family were treated both before and after his children were placed on a Care Plan. He said his two children, who were returned to his care, had been traumatised by what had happened to them over this time. There was evidence of Council fault causing injustice to E but the injustice to Mr C has already been remedied.

The complaint

  1. The complainant, whom I shall call Mr C, had his three youngest children (D, E and F) removed from his care by the courts in May 2014. E returned from care in November 2014 after self-harming and D returned in February 2015 for the same reason. F remains in care.
  2. When D and E returned, Mr C said they had changed because of the trauma they experienced whilst in the Council’s care. He had a letter from a psychiatrist saying E had been made ill because of his placements. Mr C made five complaints to the Council about what had happened:
      1. The Council abused its power in placing the children on a long-term care plan;
      2. The social worker failed to listen to (D and E’s) wishes and feelings resulting in (an) attempted suicide;
      3. The social worker failed to listen to Mr C throughout the care proceedings;
      4. Foster carers failed to care for his children appropriately; and,
      5. The social worker breached her duty of care and, as a result of her misconduct and negligence D and E are mentally unwell and reliant on drugs, alcohol and cigarettes.
  3. These complaints were investigated at Stage Two of the Council’s statutory (children’s complaints) procedure. Mr C remained unhappy so the Council set up a review panel at Stage Three. Because not all of his complaints had been fully upheld Mr C asked the Ombudsman to investigate the matters further.

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What I have investigated

  1. I have investigated the role of the Council but I cannot look at Court matters for reasons I explain below.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  2. The Ombudsman 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)
  3. Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

  1. I considered Mr C’s complaints and the documentation from the complaints process. I made several enquiries with the Council and considered its replies. I sent Mr C and the Council a copy of my draft decision and have taken their comments into account before issuing a decision.

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What I found

  1. The decision to place the children on a care plan is a decision only a court can make although it does so taking account of Council advice. The Stage Two investigating officer noted that before the decision was taken, an intensive family support programme was put in place. However, in January 2014 it was reported this had little effect and there were continuing concerns about ‘physical abuse...home conditions...sleeping arrangements...neglect of children’s emotional needs...lack of boundaries and supervision...children harming one another (and) self harming’.
  2. The Council considered the threshold for taking legal action had been reached. This is a decision it is able to make. It pursued a care order in court. D, E and F were removed from Mr C’s care, and the Council gained parental responsibility for them as a result of the court’s decision. If Mr C disagreed with the Council’s views he was able to express this in the court. There is no evidence of Council fault.

The social worker failed to listen to the children’s wishes and feelings resulting in (an) attempted suicide;

  1. The Council’s Stage Two investigation concluded D, E and F had attempted suicide and/or self-harm during their time in care, which is why D and E had been returned home under a care order. The Council was concerned both D and E might repeat attempts if they were not returned in accordance with their wishes.
  2. There is evidence that D attempted suicide and self-harmed before she was removed from Mr C’s care (a file note of 1 October 2013 reads ‘D said she took 3 overdoses in the summer’ and a further note of 23 December 2013 says D ‘had been cutting herself with a sharp utensil’). Although there is no specific record of E or F self-harming before they went into care, the January 2014 record says the ‘children’ were ‘harming one another or self harming’. On the balance of probabilities, as this was written in the plural, this could have referred to D, E and F.
  3. The Council accepted it was at fault in not telling Mr C about E’s overdose on Friday 31 October 2014 within 24 hours. The Council told him on Monday 3 November. This delay caused Mr C distress and the Council apologised, which is sufficient to remedy the fault. The Council also apologised for the distress caused by not telling Mr C about F self-harming (causing a ‘raised red mark’, which did not need medical attention) on 21 August 2015 until 15 September 2015 (25 days later). F’s social worker said this was because of her availability and needing to arrange an interpreter for Mr C. The Council apologised, which remedies this fault.
  4. Given there were allegations of overdoses and self-harm before the children went into care, I cannot say (on the balance of probabilities) this was caused by the failure of the social workers involved to listen to their wishes and feelings over this time. There is no evidence of Council fault.

The social worker failed to listen to Mr C throughout the care proceedings;

  1. Once the Council made the decision to pursue care proceedings in the court, it was for a judge to listen to both sides and decide the outcome. The judge could have decided not to agree with the Council’s application for a care order, for example. There is no evidence of Council fault.

Foster carers failed to care for his children appropriately;

  1. Mr C made nine complaints under this subheading. I have dealt with one about F’s self-harming incident in paragraph 13 so I consider there are eight other matters here.
  2. On three of the matters (the children being allowed five minutes to shower; that laundry could not be done until after 6pm due to cost and the children had to leave while the carer’s daughter cleaned the house) Mr C said this happened in a specific foster placement. The Stage Two investigator could find no evidence in file notes that these issues had been raised previously and neither could I. Although Mr C says he did raise them, there is no evidence he made complaints to the Council at the time. Had these issues been raised, I would have expected the Council to have taken them up in supervision meetings with the foster carers. Because there is no evidence to substantiate these allegations, there is no basis to find fault with the Council. In his comments to my draft decision, Mr C asked whether someone caring for the children was a qualified foster carer. It is usual for foster carers to have ‘back up carers’. There is no evidence, though, that Mr C raised this at the time and he did not ask for this to be looked at within the Council’s Stage Two investigation. The Council tried to make contact with the fostering agency but the fostering agency did not reply. I cannot say there was evidence of Council fault if the Council was not aware of this at the time.
  3. The five other matters relate specifically to E. The first is ‘E had to wash his own clothes and they weren’t ironed’. There is no evidence this was raised at the time of the matters complained of. E having to wash his own clothes is not, on the face of it, unreasonable. E was 13 at the time and there are no special needs recorded in the Council’s Stage Two investigation. It is equally possible E was expected to iron his clothes which, again, is not an unreasonable demand from the foster carer as long as he was shown how to do it in the first instance. If the Council had been aware of this, I would expect it to have dealt with the matter at supervision with the foster carer although the expectations may not have changed as a result. There is no evidence of Council fault. In his comments on my draft decision, Mr C also said E had to ‘clean up the bathroom twice a week’ – getting children to do household chores is something many foster parents, and parents, encourage. There is no evidence of Council fault.
  4. The second complaint is that E was ‘sent out at 8am and had to spend 5-6 hours in the park as school did not start until 2. He was given no money or food’. The Council says this related to a one-off event, which happened because E failed to get up in time to go with the foster carer when she left the house. The Council says E agreed to spend the morning in the library but he did not do so. The Council should also have considered whether E had ‘money or food’ on that day or what the arrangements were for him to eat before school began if he had gone with the carer as she expected. This could have been detailed within the Stage Two investigation.
  5. The failure to look at this is fault. Mr C is left with avoidable uncertainty as to whether E was without food or money on this day or, he says, on other days (he also said to me he ‘was providing E with bus fare and also school dinner money’ although I can see nothing on the Council’s records to show he reported this over the time E was in that particular placement). The Council has apologised to Mr C but it should also apologise to E if it has not yet done so. According to the Council’s Stage Two report, nine days after this the foster carer gave notice on the placement as E ‘was returning...to his parents’ home every day’.
  6. Thirdly, Mr C says ‘the carer sent E home at Eid without notifying parents’. I understand Mr C’s solicitor raised this in court as a reason for wanting the children to be returned home. Because it was for the court to decide how serious this incident was, I cannot investigate this matter further.
  7. The fourth complaint is that E’s food was stored incorrectly at the children’s home where he stayed. The social worker said she checked this at the time and his food was in a separate freezer. There is no evidence of Council fault. Mr C also says E was made to eat non-vegetarian food in his first placement. This placement lasted three days and E was accommodated with D and F. This allegation is unsubstantiated and there is no evidence Mr C raised this at the time. It was not raised in the Council’s Stage Two investigation into this matter. I am not considering this here.
  8. The final complaint is that E was ‘grabbed by the neck by his carer’. I understand the police were also involved but did not pursue matters. The Council also investigated and considered the matter was unsubstantiated. I cannot reach a finding on this complaint.

The social worker breached her duty of care and, as a result of her misconduct and negligence D and E are mentally unwell and reliant on drugs, alcohol and cigarettes.

  1. The Council’s Stage Two investigation noted that ‘since returning to the care of her parents there have been periods when D has been involved with drugs, alcohol and absconding from home’. It notes that the Council has tried to ‘address such behaviour through interagency work, including the child mental health services’. I cannot say, on the balance of probabilities, this apparent poor mental health is due to the actions of the Council (or, specifically, because of the actions of a single social worker). It was the court which decided long term fostering was in D’s best interests because of the situation at home and the Stage Two investigation was satisfied that statutory visits were made to the placements she was in so they were appropriately supervised.
  2. What I said above also applies to E. E was clearly struggling before he was placed in care. As well as the behaviours reported in the January 2014 record, he had been permanently excluded from his then school. He also frequently absconded from his foster care placements. It could not be expected that these behaviours would disappear when he returned home. I have no grounds to conclude E’s mental health was solely because of the actions of the Council (or because of a single social worker) when it was the court that decided he should be in care. The Stage Two investigation noted that statutory visits were made to his placements and they were properly supervised. There is no evidence of Council fault.
  3. In Mr C’s comments on my draft decision, he criticises the Council for allowing D and E to return home. I am not investigating this point further as there is no injustice to him. He wanted the children to come home and the Council placed them there.

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Agreed action

  1. For the Council to apologise to E because he alleges he was left without food or money for a day, if it has not already done so.

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Final decision

  1. There was evidence of fault leading to injustice for Mr C but this has already been remedied. The Council has also been asked to apologise to E to address his injustice.

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Investigator's decision on behalf of the Ombudsman

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