Decision : Upheld
Decision date : 14 Nov 2018
The Ombudsman's final decision:
Summary: Mrs X complains of failures by the Council in safeguarding her son, A. Although there were no safeguarding failures, there was other fault by the Council in the way it communicated with Mrs X. It will apologise and pay her £250 for the unnecessary worry and time and trouble this caused her.
- The complainant, whom I shall call Mrs X, complains the Council:
- Failed to deal properly with safeguarding referrals from North Yorkshire County Council, the police and her son, A’s school;
- Did not provide feedback as promised when she complained about this;
- Took too long to deal with her complaint;
- Failed to hand the case over to another local authority despite conflicts of interest caused by the employment of various parties involved;
- Communicated poorly with her over the return of A’s belongings;
- Failed to tell her anything about A’s circumstances and safety, or to work with her in accordance with its own policies and procedures;
- Allowed A to be housed in homeless accommodation rather than asking his maternal grandmother if he could stay with her; and
- Allowed A’s step-mother to access information about the case.
The Ombudsman’s role and powers
- 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)
- 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)
- We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
- We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate complaints about the police.
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), 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
- I do not have A’s consent to investigate matters on his behalf. He was 16 at the time of the matters alleged. However, I have considered the matters alleged as it was not at first clear if A was competent to give or withhold consent. As he is competent and I do not have his consent, I have not considered any injustice to him arising from any fault. For the same reason, I have not shared the documents the Council and other bodies sent me with Mrs X as they are mostly about A. The content of these documents suggests it is unlikely I could get A’s consent. I have not investigated the actions of the police, A’s former school or North Yorkshire County Council, though I have made third party enquiries of all three. I have considered any injustice caused to Mrs X arising from fault.
- I considered the Council’s duties under the Children Act 1989 and the statutory complaints procedure for children’s social care complaints laid out in Getting the Best from Complaints, 2006.
- I shared a draft of this decision with both parties and invited their comments. I considered those I received.
What I found
- Following the break-up of Mrs X’s marriage, A lived at different times with her, his father and his maternal grandmother. The events concerned in this complaint date from 2016.
- Mrs X says there was collusion between the Council and another public body owing to the employment status of her former husband and his new partner. She says this collusion has damaged her relationship with A.
- Mrs X complained to us in case 16 010 789 that the Council had failed to progress her complaint. We found it at fault and it agreed to do so, but we took no view at that time of the substantive matters Mrs X raised or of any injustice that had been caused.
Complaint a): safeguarding referrals
- Mrs X says the Council failed to deal properly with safeguarding referrals from three bodies: North Yorkshire County Council, North Yorkshire Police and A’s former school.
- Safeguarding referrals can be made by telephone, but must be confirmed to a council in writing within 24 hours. Although it can act sooner in an emergency, the referral is only made when confirmed in writing.
- The Council accepted North Yorkshire County Council had sent a Common Assessment Framework(CAF), but that it was unable to find this on its file.
- I made third party enquiries of North Yorkshire County Council. It told me it had completed a CAF, but had respected A’s wishes and had not made a safeguarding referral.
- I spoke to a senior teacher at A’s former school. He was the teacher Mrs X recommended I should contact. He said the school had not made a safeguarding referral about A to the Council.
- I also contacted North Yorkshire Police. It provided an unredacted copy of its operational record from the period concerned. This showed A had reported incidents between him and Mrs X. It recorded action the police took concerning Mrs X. It showed a police officer had phoned the Council, but it did not show any evidence that the police followed this up with a written referral.
- Although Mrs X remains of the view there were safeguarding referrals, I have seen no evidence that suggests any of the three bodies I have contacted made a safeguarding referral to the Council. Despite the Council’s acceptance that it did not process a CAF, North Yorkshire County Council has confirmed it made no safeguarding referral at A’s request. I therefore find no failure by the Council to deal with any safeguarding referral from any of them. It was not at fault.
- It is also significant that A did not want a safeguarding referral and that any such referral would have concerned Mrs X’s alleged actions. For this reason, even if there had been fault, there could have been no injustice to Mrs X.
Complaint b): providing feedback about this
- The Council accepted it failed to provide Mrs X with feedback. This feedback was that the Council had not processed the CAF. As there was no safeguarding referral to deal with, I find it at fault only for failing to give her information. I will deal with the issue of injustice later. Mrs X maintains the Council’s communication is still poor.
Complaint c): complaint handling
- The statutory complaints procedure for complaints by or on behalf of children lays out three stages. The first is a local response, the second an investigation overseen by an independent person and the third is consideration by a panel. The third stage can be left out if both parties agree to approach us. The first stage should take no more than 20 working days and the second stage 25 working days, with an option to extend to 65 working days in a complex case if the complainant agrees. The total time allowed for these two stages is not much more than four months.
- The Council took well over two years to deal with the complaint at both stages, with Mrs X having to approach us to obtain the Stage 2 investigation. This was fault by the Council as found in case 16 010 789
- It also sent the Stage 2 report to the wrong address. Mrs X provided evidence that showed the address to which the Council sent it and evidence that showed the Council had previously written to her at her correct address. Sending the report to the wrong address was fault.
Complaint d): potential conflicts of interest
- Given the employment of Mrs X’s former husband and his new partner, it would have been good practice for the Council to ask another authority to take on the case. However, it would not automatically be fault for the Council to deal with it itself.
- The records I have seen show the Council at first asked another authority to deal with the case, but did not pursue this line. The Council accepts it should have done more to resolve the potential issue. While it would have been better for all parties if it had ensured another authority took on the case, I do not find it allowed any actual conflict of interest. This is because, for reasons I explain later, it took suitable steps to ensure there was no improper conduct. It did not therefore need to hand over the case. Although Mrs X does not agree, I do not find the Council at fault.
Complaint e): the letter telling Mrs X about her returning A’s belongings
- I have seen the letter the Council sent Mrs X. It was brief and blunt. The Council accepts it was insensitive. The wording of the letter was fault.
Complaint f): providing information about A and seeking Mrs X’s views
- The evidence I have seen shows A expressed a clear wish that he did not want Mrs X involved in his care when he was no longer living with her. I have seen no reason to doubt his competence to express his wishes. Given his wishes, what the Council could tell Mrs X was limited. Even so, it could have provided her with reassurance that he was safe and well and asked for her views. The Council accepts it did not do so. This was fault.
Complaint g): where A was housed
- The records I have seen show the Council followed A’s wishes about where he lived. As he was competent to decide, there was no fault in it doing so.
Complaint h): access to the case
- It would not have been appropriate to allow A’s step-mother to see any details of the case. The Council told me she had no direct involvement with those dealing with the case. I have seen the standard electronic social care files used by most councils in various visits over the years and these leave a record of who has accessed a file. The Council told me it had checked the electronic file for details of who had accessed it, and A’s step-mother had not done so.
- I asked the Council for a copy of an internal report it had been unwilling to share with Mrs X. It provided me with a copy. It contained third party details it could not have shared with Mrs X. I followed up a reference in the report to inappropriate sharing of information. The Council provided evidence that showed two requests to interview officers had been shared in error. This did not involve A’s step-mother. Having visited the Council on other business, I can also confirm it takes a rigorous approach to the sharing of information.
- I have therefore had to reach a view on the balance of probabilities whether A’s step-mother accessed the case. I consider it reasonable to accept that the electronic record shows she did not. She would therefore have had no access to information. It is also reasonable to accept that Council officers would have been aware, given the high priority the Council gives to data security, that accessing information or allowing someone else to do so would have been likely to have very serious consequences. And the wide range of evidence, much of it confidential, that I have seen shows no sign of any wider conspiracy to conceal harm or risk of harm to A. Above all, his voice is clear in the documents I have seen. Taking all these matters into account, I do not find the Council allowed A’s step-mother to access details of the case. I do not find it at fault.
- In summary, although I have found no fault in the serious matters complained of, there was some more minor fault by the Council. I have considered if this caused Mrs X any injustice.
- The Council did not provide her with feedback about the CAF and wrote a short letter that took no account of how she was feeling after A left her care. It did not give her basic information that A was safe and well. It also took far too long to deal with her complaint and sent the Stage 2 investigation report to the wrong address. It is important to note the Council could not have answered all Mrs X’s questions and concerns, so she was bound to be left with some uncertainty. But the faults found amount to poor communication, without which the Council could have allayed her most basic fears. I have no doubt that Mrs X cares deeply for A and that the faults I have found caused her some injustice in the form of unnecessary worry about him. Although Mrs X says A might have expressed different wishes if the Council had taken more account of her views, the Council’s duty was to take account of A’s views, which were clear.
- One of the faults, sending the Stage 2 report to the wrong address, also caused Mrs X some time and trouble in that she had to go to a stranger’s house and ask for the document. Doing so, knowing the content concerned her private life and that the stranger might have read it, cannot have been a comfortable experience.
- When we considered Mrs X’s earlier complaint 16 010 789 about the Council’s failure to progress her complaint, we were not able to say if this had caused her any injustice because we did not know if there had been any fault in the matters complained of.
- Now it is clear there was some fault causing injustice in those matters, it follows that the serious delay in dealing with Mrs X’s complaint caused her unnecessary time and trouble that meant she had to approach us.
- To remedy the injustice caused by the fault found, the Council will, within one month of the final decision:
- Apologises to Mrs X for its poor communication and complaint handling, including sending the Stage 2 investigation report to the wrong address; and
- Pays Mrs X £250 for her unnecessary worry and the time and trouble it has caused her in pursuing her complaint.
- Mrs X says this remedy is inadequate.
- I have upheld the complaint and closed the case as the Council has agreed to offer a suitable remedy for the injustice caused by the fault found.
Investigator's decision on behalf of the Ombudsman