Decision : Upheld
Decision date : 25 Apr 2018
The Ombudsman's final decision:
Summary: The Council and Trust provided suitable support for a young person and his family in response to safeguarding concerns. However, there was some delay in initial Council assessments and an accepted lack of clarity by the Trust in its dealings with the complainant but this did not cause significant injustice due to other factors.
- Mrs X complained about the London Borough of Tower Hamlets’ (the ‘Council’) and East London NHS Foundation Trust's actions around a lack of suitable treatment for her son B and appropriate support for the family and the resultant impact this had on B, Mrs X and her daughter G.
- Mrs X, is also representing her son B and daughter G in this complaint and we have their written consent for her to act on their behalf.
- Specifically Mrs X complained the Council:
- failed to deal with requests for support with B's aggression that were directed to the Council by the Trust on behalf of Mrs X;
- placed B in unsuitable, semi-independent accommodation under voluntary care through S20 of the Children Act;
- inappropriately removed B and G from Child Protection plans and placed them on Child in Need plans; and
- failed to provide overall support to the family that would mitigate risks to B and others from his condition/behaviour and that would keep the family together.
- Mrs X complains the Trust:
- failed to implement an interim treatment plan after Child and Adolescent Mental Health Service (CAMHS) Greatorex West and East Sector assessed B in February 2016 as being a high risk to her and G;
- failed to implement a treatment plan following an independent reassessment of B in July 2016, which made similar recommendations; and
- failed to offer dual care when prescribing medication for B in October 2016.
- Mrs X says the Council's and Trust's actions led to the break-up of her family through voluntary care arrangements, violent attacks on Mrs X, G and the family home by B, with a period spent living in hotels due to the risk B posed to them and B suffering self-harm and receiving a criminal record through criminal behaviour due to lack of appropriate support and treatment.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
- In this case I have exercised the Ombudsmen’s discretion to investigate events back to January 2015. This is because the events within the 12 months preceding Mrs X’s complaint to us follow without break from early 2015 and the context of those earlier events is directly relevant to what followed.
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have spoken with Mrs X and considered written information from her.
- I have considered extensive records from the Council, including case records, records of Child Protection meetings, Core Group meetings, Child in Need meetings, specialist reports and correspondence with Mrs X and the Trust.
- I have considered records from the Trust, specifically the Child and Adolescent Mental Health Service (CAMHS) case records for B and correspondence with Mrs X and the Council.
- I have considered:
- Sections 17, 20, 25 and 47 of the Children Act 1989;
- Public Law Outline: Pre-Proceedings Framework April 2008
- Working Together: Safeguarding Children and Young People 2015; and
- The London Safeguarding Children Board’s thresholds for intervention for Children in Need.
What I found
- The Children Act 1989 as amended by the Children Act 2004 (the Act) sets out the duties of local authorities, parents, courts and other agencies for the care and protection of children. It centres on the welfare of children up to the age of 18 and encourages partnership working with parents. There are several sections particularly relevant to this complaint.
- Under s17 of the Act councils have a general duty to safeguard and promote the welfare of children in their area who are described as ‘In Need’ of services to ensure their health or development. A council is expected to provide a range and level of services appropriate to that child’s needs.
- Under s20 of the Act children and young people can be accommodated with the consent of those with parental responsibility (PR).
- If the young person is 16 or 17 years old, they do not need the consent of those with PR in order to be accommodated by the council. If the young person is 16 or 17 years old, they can leave the accommodation without parental consent.
- S20 is based on co-operative working between the council, the young person and his or her parents.
- Councils can consider formal actions to protect a child. These include Emergency Protection Orders (EPO) and Care Orders. The threshold for these is high. The Council should attempt to fully explore s20 with the parents before considering an application for an EPO or Care Order.
- Public Law Outline: Pre-Proceedings Framework April 2008 sets out that councils should ensure care proceedings are only started after all safe and appropriate alternatives to court proceedings have been explored.
- The test for removing a child from the care of their parents pending final determination of care proceedings is set out in an appeal judgement L-A (Children) (2009) EWCA Civ 822: ‘whether the removal or the continued removal of (the child) from the care of his/her parents is proportionate to the risk of harm to which he/she will be exposed if allowed to return to the parents care’.
- S25 of the Act covers secure accommodation and there are also the Children (Secure Accommodation) Regulations 1991.
- A secure accommodation unit is a residential placement where you are prevented from leaving. Restricting the liberty of children is a serious step which should only be taken where the needs of the child cannot be met by a more suitable placement.
- A decision to place a child in secure accommodation must be based on the assessed needs of the child at the relevant time and never because no other placement is available, because of inadequacies of staffing in a child’s current placement, because the child is simply being a nuisance or where he or she runs away from their accommodation and is not likely to suffer significant harm as a result of this.
- S47 of the Act is about safeguarding children and young people. The Council must carry out an investigation when it has ‘reasonable cause to suspect a child…in their area is suffering, or is likely to suffer, significant harm’. The investigation involves an assessment of the child’s needs and the ability of those caring for the child to meet them with a view to deciding whether any action is needed to safeguard the child. It is a multi-agency process.
- The investigation may lead to formal Child Protection processes, with reviews and a Plan setting out what the Council and other agencies will do to protect the child, as well as the parents’ role. Child Protection Plans should not be long-term measures and review can lead to the ending of the formal Plan and a step down to Child in Need (CIN) support and monitoring, under s17 of the Act.
- Working Together to safeguard children 2015 (Working Together) is the government’s statutory guidance on inter-agency working to safeguard and promote the welfare of children. It was updated in February 2017.
- Working Together says all work with children must be child centred. ‘Where there is a conflict between the needs of the child and their parents/carers, decisions should be made in the child’s best interests.’
- The Council has safeguarding policies under the London Children Safeguarding Board. These contain specified threshold criteria for the level of needs that may be identified. Tier 3 is Children with complex multiple needs and is the threshold for an assessment under s17 of the Act.
Summary of events
- This case has a long history and considerable detail. This summary is to outline key events only, to set the complaint in context. B was aged 15 in 2015, as was G.
- Following initial contact from Mrs X in January 2015 the Council received a number of referrals from the police about B’s aggressive behaviours towards Mrs X and G. Mrs X declined support from the Council at that stage.
- CAMHS became involved initially in April 2015 following a referral to them from a local hospital treating B for a hand injury.
- Through 2015 B’s behaviours resulted in arrest, school exclusion and placement away from the family home. G remained living with Mrs X. B breached bail terms to stay away from the family home and assaulted G more than once.
- The Council started child protection processes in August 2015 which led through multi-agency decisions to Child Protection Plans for both B and G.
- In 2016 B was placed in a semi-independent residential placement but regularly returned home. An assessment of him indicated Attention Deficit Hyperactivity Disorder (ADHD) and personality disorder with a recommendation for medication and therapeutic input.
- In March the Council through a multi-agency agreement stepped B and G down from Child Protection Plans to CIN support because there was a view the Plans had not been effective and Mrs X and B might respond better to Child in Need support.
- From this the Council also started the process to decide whether B should have an Education, Health and Care Plan (EHC Plan) for his educational needs. This process took far longer than the statutory 20 week period.
- In April B was given a three month Youth Referral Order.
- The Council then placed B in semi-independent accommodation at Mrs X’s request but he often returned home. The Council then placed Mrs X and G in bed and breakfast accommodation for their safety for three months and paid for security measures on their home.
- Later in 2016 B returned home at Mrs X’s request. He assaulted G requiring her to attend hospital. The Council then placed B in different semi-independent living accommodation and placed G in foster care under s20 of the Act, at Mrs X’s request.
- In January 2017 B was placed under a nine month Youth Referral Order. In March he started occasional work in a catering firm, sourced through contacts of Mrs X’s.
- B did not engage fully with Youth Offending sessions required under his Youth Referral Order nor with one-to-one CAMHS support. He was missing from his placement regularly, either visiting Mrs X or staying with friends.
- In July the Council allocated B and G’s cases to its Leaving Care Service as they were 17 and the Council needed to plan for reaching 18 in January 2018. At age 18 B and G would move to support from Adult Care Services.
- In September B started at college on an electrician course.
- G remained in the foster placement from October 2016. In October 2017 the Council agreed a semi-independent living placement for G from age 18 in early 2018.
- B and G remain in accommodation (separate placements) provided by the Council and receive Leaving Care services. G is in a supported placement (semi-independent) and B’s previous placement remains open for him (although he uses it erratically) pending alternative accommodation being agreed and provided. The Council is in the process of finding B suitable accommodation based on his assessed needs.
- Mrs X complained the Council:
a) failed to deal with requests for support with B's aggression that were directed to the Council by the Trust on behalf of Mrs X;
- The Council first received contact from Mrs X and the police in January 2015. It offered support to Mrs X however she said clearly she did not want social care involvement at that point and that she was ‘working things out with B’. The Council then received further referrals from hospital and from Mrs X herself. There is no evidence the Council carried out a full assessment of B and G or a carer’s assessment of Mrs X at this stage.
- This was fault. A proper assessment at this early point should have set out what B’s needs and difficulties were and what G’s needs were and the impact of B’s behaviours on her. A carer’s assessment of Mrs X would have set out her difficulties and needs.
- The Council started safeguarding procedures in July 2015. The Initial Child Protection Conference (ICPC) should have been held at the end of July in line with the Working Together guidance. The Council deferred the ICPC because it would fall within the school summer holiday period. The Council felt it would not be possible to have school and related professionals attending a meeting. Therefore the meeting that was held was described as an ‘Outcomes’ meeting. The full ICPC was held in early September 2015.
- This was fault as there is no alternative within Working Together for an Outcomes meeting.
- The Council failed to carry out s17 Child in Need assessments of the family in early 2015 and delayed in holding the ICPC in July 2015. Both of these were fault but did not result in significant injustice because of the general lack of engagement by Mrs X and B with professionals.
- The Council offered some initial support to Mrs X and B early in 2015 which she declined. It put in place Outreach activities which B engaged with initially but which Mrs X did not support.
- CAMHS closed its initial involvement with B in June 2015 because he did not engage and Mrs X did not support him to continue attending sessions. The Council contacted CAMHS in October 2015 and from that point it had ongoing involvement with child protection and Child in Need processes alongside the Council.
- I therefore have seen no evidence that the Council received or ignored any requests for support from CAMHS or any other source.
b) placed B in unsuitable, semi-independent accommodation under voluntary care through S20 of the Children Act;
- The accommodation the Council provided for B was suitable in its expertise with young people with behavioural and emotional difficulties. It was semi-independent as it would not have been appropriate for B to be placed in secure accommodation. From January 2016 B was entitled to decide whether he wanted to remain in the placement under S20 of the Children Act 1989. He demonstrated a very variable attitude to the placement at times.
- I do not find fault in the Council’s actions on this point.
c) inappropriately removed B and G from Child Protection plans and placed them on child in need plans;
- Child Protection Plans (CPP) are not designed to be long-term measures. The decision to step down to Child in Need (CIN) was a multi-disciplinary decision, based in part on the support measures already established and a positive view that although Mrs X had not co-operated fully with the CPP she would work more readily under Child in Need to support B to change his behaviours and to comply with his youth offending orders.
- I do not find fault in the Council’s actions on this point.
d) failed to provide overall support to the family that would mitigate risks to B and others from his condition/behaviour and that would keep the family together.
- The Council put in considerable amounts of support through Outreach in 2015, YOT services, CPP support and CIN measures through 2016 and 2017. B chose to engage with his support intermittently reducing the likely effectiveness of it overall. Mrs X was unable to support B to engage fully with these interventions. S20 provisions are clearly stated to be ‘co-operative’. Mrs X continuously withdrew her co-operation from the Council and other professionals.
- The Council focussed on supporting B and the family within the family home. Its last resort was to remove B into care formally. This is in line with the Children Act 1989. It prepared legal proceedings but decided not to implement them as Mrs X complied more after it issued a Danger Statement in late 2015.
- Mrs X asked for support that was not within the Council’s services, such as mediation between her and Mr X. She wanted activities for B that the Council was not in a position to support. However, she felt what was put in place for him was unsuitable.
- The Council’s role was not to provide just what Mrs X wanted. It assessed B’s needs and the family circumstances and put in support, or offers of support, that would be appropriate to those. B did not engage fully and Mrs X declined offers made to her. That these interventions were not fully effective was not therefore due to fault by the Council.
- Mrs X complains the Trust:
e) failed to implement an interim treatment plan after Children and Adolescent Mental Health Service (CAMHS) Greatorex West and East Sector assessed B in February 2016 as being a high risk to her and G;
- The Trust through CAMHS provided one-to-one inputs for B from late 2015. From the start B engaged intermittently.
- CAMHS offered family interventions to Mrs X, covering parenting and the relationship with B, but this was not clear to Mrs X either through misunderstanding or a lack of clarity. CAMHS has accepted responsibility for this and apologised for it to Mrs X in 2016.
- Mrs X has consistently avoided or declined any intervention that might involve a review of her parenting role on B’s behaviours. I therefore consider CAMHS’ apology a suitable remedy for the lack of clarity on this aspect.
f) failed to implement a treatment plan following an independent reassessment of B in July 2016, which made similar recommendations;
- The Forensic Adolescent Team provided its independent report in late September 2016 after the Council and CAMHS commissioned it in March. That delay was not of CAMHS making.
- CAMHS reviewed the report and reached the view it could offer what the Forensic Adolescent Team could provide and was already providing the direct behavioural support to B through the one-to-one sessions.
- CAMHS offered and provided B with medication for his ADHD in line with the report’s recommendations and reviewed this regularly with Mrs X in the initial weeks. It set out an interim care plan in November 2016 following a multi-agency meeting. The plan therefore related directly to all the interventions in place to support B and the wider family support work offered to Mrs X. A copy of this was sent to Mrs X and her GP.
- Mrs X was offered an intervention to help her develop an understanding of B’s behaviour and to support effective communication between them, both in a group and individual setting. CAMHS accepts there was a lack of clarity in explaining aspects of this to Mrs X but the copy care plan sent to her in November 2016 set out the proposals clearly.
- I do not find that CAMHS failed to implement a treatment plan after the reassessment was available to it.
g) failed to offer dual care when prescribing medication for B in October 2016.
- CAMHS offered B both medication and to maintain the ongoing one-to-one behavioural support sessions. B did not take the medication for long due to disliking the side-effects he reported and did not regularly attend the personal sessions. Professionals agreed that, as B was not in education in early 2017 and so did not need to concentrate in a focussed way, his medication could stop until it might be needed in the future. The personal sessions remained open to B and he attended them inconsistently.
- When B received personal tuition in Maths and English from May 2017 there was no concern reported about his ability to concentrate during the sessions he attended; these were again irregular.
- I am satisfied therefore that CAMHS had put in place support for B whilst he was on medication and regularly reviewed its effects with Mrs X in the early days.
- I recommend the Council considers a review of its processes to ensure:
- s17 assessments are carried out in a timely way; and
- Initial Child Protection Conferences are held within the required timescales.
- The Council was at fault in:
- failing to complete assessments under s17 of the Children Act 1989 in early 2015;
- allowing delay in holding an Initial Child Protection Conference in July 2015; and
- failing to complete B’s EHC Plan within the statutory time period of 20 weeks.
Investigator's decision on behalf of the Ombudsman