Decision : Upheld
Decision date : 16 Apr 2018
The Ombudsman's final decision:
Summary: Mrs X complains the Council failed to properly advise her about the consequences of signing a section 20 agreement, and has not taken adequate or appropriate action to ensure her child’s safety and well-being while in the Council’s care The Council’s failure to record how it explained the process and outcome of section 20 of the Children Act to Mrs X amounts to fault. This fault does not mean the decision to accommodate her child was wrong, and has not caused Mrs X an injustice.
- The complainant, whom I shall refer to as Mrs X complains the Council failed to properly advise her about the consequences of signing a section 20 agreement in June 2016, her ability to revoke this consent and her ongoing rights. Mrs X states the Council coerced her into signing the agreement and has not adequately explained why she cannot withdraw her consent.
- Mrs X also complains the Council has not taken adequate or appropriate action to ensure her child’s safety and well-being while in the Council’s care. Mrs X does not consider the care home was a suitable placement for her child. She states her child’s self-harm has escalated and they have been subjected to abuse since being placed into the Council’s care. This has caused Mrs X considerable distress and suffering.
- In addition Mrs X complains the Council has failed to keep her informed when her child has moved or been hospitalised and has not responded to her correspondence.
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)
- 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
- As part of the investigation, I have:
- considered the complaint and the documents provided by Mrs X;
- made enquiries of the Council and considered the comments and documents the Council provided;
- discussed the issues with Mrs X;
- sent a statement setting out my draft decision to Mrs X and the Council and invited their comments. I have considered Mrs X’s response.
What I found
- Section 20 of the Children Act imposes a duty on local authorities to provide accommodation for any child in need in their area who appears to need accommodation because:
(a) there is no person who has parental responsibility for them;
(b) they are lost or have been abandoned; or
(c) the person who has been caring for them is prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
- The Act requires that before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
- ascertain the child’s wishes and feelings regarding the provision of accommodation; and
- give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.
- However, a local authority may not provide accommodation under this section if any person who has parental responsibility for the child; and is willing and able to provide accommodation for him; or arrange for accommodation to be provided for him, objects. This does not apply where a child is sixteen and agrees to being provided with accommodation under this section.
- And any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. Again this does not apply where a child is sixteen and agrees to being provided with accommodation under this section.
What happened here
- Mrs X’s child, Y was admitted to hospital in June 2016. Y refused to see Mrs X while in hospital, or to return to her care. Y was 15 at the time. Mrs X states she was forced to sign a section 20 agreement for the Council to accommodate Y. She understood this would be for respite care for three weeks as Mrs X and Y both needed a break.
- Y was briefly placed with foster carers and then moved to a care home, Home 1 in July 2016. While at Home 1, Y decided they did not want any contact with Mrs X or for any of their information to be shared with her.
- Mrs X does not consider Home 1 was a suitable placement for Y. She states Y continued to self-harm, absconded and was assaulted while at Home 1. Mrs X was concerned the Council did not tell her about these incidents or that Y was admitted to hospital. She wanted Y to return home and made a formal complaint to the Council in September 2016.
- The Council advised Mrs X that Y was competent to make their own decision and to request confidentiality about aspects of their life. It confirmed that until Y was 16 it would consider sharing information about placement changes, serious illnesses or hospital admissions with her. But as a looked after child under s20 of the Children Act from Y’s 16 birthday they would have the right to full confidentiality across all aspects of their life.
- Mrs X was not happy with the Council’s response and asked the Council to consider her complaint further. The Council arranged a meeting with Mrs X in November 2016. Mrs X attended this meeting with an advocate.
- The notes of this meeting record Mrs X’s concerns about the s20 agreement. Mrs X felt misled by the social work and that she had no choice but to sign the agreement. The officer explained that the Council would need to obtain a court order to remove a child against the parent’s wishes. In this case, as Y was refusing to return to either parent’s care, and hospital staff were concerned for their safety, local authority care was the only option. The officer felt sure that had Mrs X refused to s20 placement, the Council would have applied to court, and obtained the necessary order. The officer apologised if the social worker had not made the options and legal position clear to her.
- Mrs X also raised concerns about Home 1 and the Council’s ability to keep Y safe. The notes state the officer acknowledged that Y was making poor decisions and putting themself at risk. Those involved in their care were trying to understand why Y was making these decisions and to help them make better ones, but this would ultimately be dependent on Y’s engagement. Y was now 16 years old and had the right to choose not to see Mrs X or to share any information with her.
- The officer said that although Y’s behaviour had escalated, and the Council could not guarantee their safety, Home 1 was most likely to meet their needs.
- The notes state the officer advised Mrs X she could pursue her complaint to the next stage of the Council’s process, but unless there was other information, the outcome was likely to be the same. Following the meeting the officer wrote to Mrs X and asked her to provide details of any outstanding issues she wanted to be considered at stage two the complaints process. Mrs X did not pursue her complaint at this stage.
- Mrs X remained concerned about Y’s safety and welfare. In April 2017 she asked the Council and Home 1 not to contact her directly. She wanted all future contact to be via her advocate.
- Mrs X and her advocate met with Council officers and Y’s key worker from Home 1 in July 2017 to discuss her ongoing concerns and request that Y return home. The records of the meeting note the difficulties in discussing Y with Mrs X when Y has asked no information is shared with Mrs X. They also state the barrier to Y returning home is that Y states they do not wish to return.
- At this meeting it was agreed the Council would share with Mrs X when Y was:
- going overseas;
- missing and the Council was sufficiently worried to seek a press release; or
- in hospital with a life changing medical condition.
- There is no clear record of how the Council explained the s20 process to Mrs X or what her options were. Mrs X states she was misled and felt forced to agree to the s20 placement, but in the absence of any records I am unable to confirm what Mrs X was told or the tone of this conversation.
- There is no dispute that at the time Mrs X agreed to the s20 placement Y was refusing to return to either parent’s care and, given the concerns about her safety, arrangements had to be made to accommodate her. I consider it more likely than not that had Mrs X refused to agree to the s20, the Council would have applied for a court order. In such circumstances I would expect the Council to explain this to Mrs X. This may have led Mrs X to feel she had no option but to agree, but is not fault on the part of the Council.
- However, for a decision of this nature I would expect the Council to keep a full record of what was discussed and agreed. Failure to do so amounts to fault. But this fault does not in itself make the decision to accommodate Y wrong.
- Mrs X is unhappy that the s20 has remained in place for longer than she anticipated and despite her withdrawing consent. But as Y is over the age of 16 the Council must take account of their views and wishes. Y did not want to return to Mrs X’s care, and had wanted to stay at Home 1.
- The Council must also respect Y’s requests for confidentiality and not to share any information about them with Mrs X. Mrs X’s distress and concern at not being involved in her child’s life, or in decisions about their care, is understandable. Particularly if Y is making poor decisions or putting themself at risk and the Council cannot share any details of the care and support Y is being offered/given. I also recognise the difficulties and frustrations that arise when Mrs X receives information about Y through third parties. However this is not due to fault on the part of the Council, and I would not expect the Council to act contrary to Y’s express instructions by sharing information with Mrs X.
- The Council’s failure to record how it explained the process and outcome of section 20 of the Children Act to Mrs X amounts to fault. But this fault has not caused Mrs X an injustice.
Investigator's decision on behalf of the Ombudsman