Decision : Upheld
Decision date : 19 Nov 2018
The Ombudsman's final decision:
Summary: Mrs X complains about the Council’s investigation into the care and safeguarding of her children, Y and Z, while in its care between January 2015 and October 2016. The Council was at fault. The statutory investigation found the Council failed to provide Y with sufficient support while in its care, and there were significant delays in the statutory complaints process. The Council has agreed to apologise to Y and pay them £1600 in recognition of its failings. The Council has also agreed to apologise to Mrs X and pay her £300 to recognise the delays in handling her complaints.
- Mrs X complains about the Council’s investigation into the care and safeguarding of her children, Y and Z, while in care between 2015 and 2016. Mrs X said her children continued to suffer harm while they were in its care.
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)
How I considered this complaint
- I have spoken with Mrs X about her complaint and considered her written complaints to the Council.
- I have considered the independent stage 2 complaint investigation report.
- I have considered the independent stage 3 panel report.
- I have considered the Council’s final response to Mrs X’s complaints.
- I have considered the Council’s response to my enquiries.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made my final decision.
What I found
- Local authorities have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child’s welfare. (Children Act 1989, section 47)
- The Children Act 1989 allows a court to make a care order placing a child in the Council’s care as a “looked after child”. The Council then has several duties to “safeguard and promote the child’s welfare”.
- All looked after children must have a care plan which the Council must keep under regular review. The plan must include any court orders, the name of the Independent Reviewing Officer (IRO) and details of contact with parents.
- Parents of looked after children keep their parental responsibility, even when a child is under a care order. They have a right to be informed and consulted about all decisions unless the court approved care plan says otherwise.
- The Council holds looked after child (LAC) reviews to oversee implementing the care plan, check progress and make any necessary changes.
- Under section 19 of the Education Act 1996, if a child of compulsory school age (between 5 and 16 years old) cannot attend school for reasons of illness, exclusion from school or otherwise, the council must arrange to provide ‘suitable education’. This can either be at school or elsewhere.
- Under s22(3A) of the Children Act 1989 local authorities are under a duty to promote the educational achievement of looked after children including a looked after child aged 16 or 17.
- The term ‘suitable education’ is defined as efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have.
- The education arranged by the council must be full time, unless, in the interests of the child, the council considers part time education more suitable. This would be for reasons relating to the child’s physical or mental health.
- The council’s duties under section 19 apply to all children of compulsory school age.
- A Pathway Plan is a care plan detailing the services and support needed by young people aged 16-21 years old to help during their transition to adulthood. The Care Planning, Placement and Review Regulations set out the matters that must be addressed by the pathway plan for an eligible young person. The plan must capture the actions which will be necessary from the Council.
- The Pathway Plan should include:
- Details of any accommodation the young person will occupy when they cease to be looked after.
- Plans for the young person’s education or training.
- How the Council will assist the young person in obtaining employment.
- The young person’s financial capacity.
- The young person’s health needs.
- Any contingency arrangements the Council have in place.
Children’s services statutory complaints process
- There is a formal procedure, set out in law, which the Council must follow to investigate certain types of complaint. It involves three stages:
- Local resolution by the Council (Stage 1);
- an investigation by an independent investigator who will prepare a detailed report and findings (Stage 2). The Council then issues an adjudication letter which sets out its response to the findings; and, if the person making the complaint asks
- an independent panel to consider their representations (Stage 3).
- Regulations set out the timescales for the process. The Council should provide a response at Stage 1 within 10 working days and at Stage 2 within 25 working days (or exceptionally within 65 working days). The Council should call a review panel at Stage 3 within 30 working days.
- When the Council has investigated a complaint under the Children Act complaints process, the Ombudsman would not normally re-investigate it. We may consider whether a council has properly considered the findings and recommendations of the independent investigator and review panel, and any remedy the Council offers.
- This complaint is about events from 2015 onwards. In 2015, Mrs X lived with her partner, Mr A, and her children, Y who was 14 years old, and Z who was 10 years old. Both Y and Z had a history of social care involvement from an early age. Y spent a period in care between December 2013 and February 2014, and then a further period in July 2014.
- In January 2015, the police removed Y and Z from Mrs X’s care, under police protection powers Because of the police investigation the Council obtained an interim care order for both Y and Z.
- In June 2015, the court granted a full care order for Y and a 12 month supervision order for Z. During the hearing, Mrs X accepted she could not provide safe long term care for Y and Z. The Council placed Z into the care of Mr A under a child arrangement order and therefore returned to live with Mrs X. The Council transferred Y to the LAC team and into foster care.
- Y remained in foster care between June 2015 and October 2016. Despite appearing to settle well into foster care, Y’s education attendance reduced and Y went missing on many occasions.
- In October 2016, Y went to live with their biological father, Mr B and refused to return to foster care. The Council agreed for Y to stay with Mr B who lived in sheltered accommodation. Following a reassessment of Mr B’s circumstances and parenting capacity, the Council rehoused Mr B and Y into more suitable accommodation.
- Mrs X said she had growing concerns that Y was being sexually exploited while in care. She said social services were failing to ensure Y was safe. Mrs X said this caused Y to go abscond and miss large amounts of education.
- Mrs X first complained to the Council in August 2016. She complained social services failed to keep Y safe and protect them from harm in its care. She also said Y had missed over a year and a half of education. Mrs X also complained about the conduct of the social worker.
- Mrs X was unhappy with the Council’s stage one complaint response. Mrs X asked the Council to escalate her complaint to stage 2 in October 2016. The stage 2 investigator and the independent person agreed the aspects of Mrs X’s complaint.
- The investigator completed the stage 2 report in May 2017 The investigator concluded in the stage 2 report that the Council missed opportunities to safeguard Y and they continued to experience significant harm while in the care of the Council. The investigator recommended that Y should receive additional support to help them catch up in education. The investigator also said the Council should make a sum of money available for Y to access therapy in adult life.
- Following the completion of the stage 2 independent investigation the Council considered the report and wrote to Mrs X in June 2017. The Council upheld the following complaints at stage 2:
- Y had gone missing/absconded on more occasions and for longer periods whilst looked after by the Council, than when she was at home in mother’s care.
- The Council failed to undertake keep safe work with Y (in a timely and meaningful way).
- The Council concluded the standard of social work provided to Y and Z had at times fallen short of the standards it expected. It recognised that a lack of sufficient case recording also hampered the investigation, and resulted in a lack of understanding on why the Council made certain decisions. The Council also apologised for the unreasonable amount of time the investigation took to conclude, which was over the time limits contained within the statutory guidance. The Council offered Mrs X a payment of £150 in recognition of the delay and for the time and trouble taken to raise the complaints.
- In August 2017, Mrs X wrote to the Council and asked it to escalate her complaint to stage 3. The stage 3 review panel meeting took place in January 2018 and the chair of the panel explained the purpose of the review was to review Mrs X’s complaints and not to re-investigate them. The panel considered the complaints which were not upheld at stage 2. The panel said “there is evidence of continued sexual exploitation after Y was made subject to a care order and placed in the local authorities care”. The panel did not consider the Council was totally responsible for Y’s lack of engagement with education. It felt Y’s Pathway Plan should reflect their educational needs going forward.
- In February 2018, the Council wrote to Mrs X after considering the stage 3 report. The Council upheld the following complaints at stage 3:
- The Council did not provide Y with the therapeutic support they needed to cope with past childhood abuse and trauma.
- There was an unreasonable delay in giving Z an explanation of why they were in care.
- The social worker would not allow Mrs X to see Z in January 2015. This was for a period of approximately 2-3 weeks.
- The Council partially upheld that it had failed in its duty to promote Y’s education so they could reach their academic potential. It said it was unable to make a finding on whether Y continued to be sexually exploited in its care. The Council apologised for the instances where it could have better supported Y and Z and would consider learning and changes to future social work. Mrs X’s desired outcomes for her complaints were significant amounts of compensation for her family, as well as private tuition for both Y and Z.
- The Council offered payments of £300 to both Y and Z in view of the upheld and partially upheld complaints. It further offered Mrs X £250 to recognise the time and trouble in raising her complaints.
- Mrs X remained unhappy with the outcome of the Council’s investigation into her complaints and in April 2018, she complained to the Ombudsman.
Statutory Complaints Process Timescales
- The statutory complaints process sets out timescales for the process. There was a lengthy delay at both stage 2 and stage 3 of the statutory complaints process. While I accept the investigation was complex, the Council is at fault not meeting the timescales. The Council has already apologised to Mrs X and offered her a payment of £250 in recognition of the delays. I consider this to be a suitable remedy.
The stage 2 investigation and stage 3 panel
- Where complaints have completed the statutory procedure, the Ombudsman does not normally re-investigate the complaint itself. The exception would be where there is evidence of fault in the how the stage 2 and stage 3 were conducted.
- The statutory investigation found significant failings by the Council. I have reviewed both the stage 2 investigation and stage 3 panel and am satisfied the Council is not at fault for the way it carried them out. The evidence shows both the investigator and panel considered all relevant information in reaching their findings.
- Following the stage 2 investigation and stage 3 panel the Council apologised to Mrs X that the standard of social work fell below the expected level. It apologised about the delay in explaining to Z why it took them into care. The Council agreed with the stage 2 investigator that it failed to consistently undertake keep safe work and therapeutic intervention with Y. It also agreed the social worker was wrong when they prevented Mrs X from seeing Z in January 2015. It agreed to consider the learning points and recommendations that arose from the statutory investigation. However, following the stage 3 panel the Council disagreed with elements of the findings.
- The statutory investigation found “Y continued to suffer significant harm in the care of the Council”. It is however unclear whether the Council accepts this finding. This aspect of the complaint was upheld at both stage 2 and stage 3 but not by the Council in its final response. The Council said in response to my enquiries, “the local authority does not accept it failed in the way it delivered services to Y”.
- The statutory investigation found Y continued to be sexually exploited while in Council care. The evidence also shows Y went missing for longer periods than when living at home. The Council identified it should have placed Y into a therapeutic placement when they came into care. However, the stage 2 investigator suggested the Council gave in to Y’s wishes rather than doing what was in Y’s best interests. The investigation found Y continued to be exposed to significant harm because they remained in familiar environments. This compromised any potential Y had to engage with keep safe and therapeutic intervention.
- The Council had significant safeguarding concerns for Y as early as 2009. It knew of Y’s risk factors before them going into care. The Council therefore should have been well placed to manage these risk factors when it decided to remove Y from their mother’s care.
- It is the Council’s duty when placing children into care to provide them with a safer environment. The review panel were of the view that “social work intervention was instigated in order to protect Y”. The panel found, there was “evidence of continued sexual exploitation after Y was made subject to a care order” and placed in the Council’s care. This is fault.
- The investigation found the Council made every reasonable effort to engage Y in education during their time in care. However, it said any education offered to Y was significantly undermined by the placement’s they were in. Y’s missed a large portion of education between 2013 and 2017. Y’s school attendance dropped to between 29% and 68% after 2013. Y was excluded from education seven times during year 10 and did not sit their GCSE’s. Since living with Mr B, Y stopped attending school completely, however the evidence shows the Council did make attempts to engage Y with different forms of education.
- Following the statutory investigation, the Council has supported Y with offers of college course and training opportunities. A meeting has taken place with the head of virtual school to plan for Y’s ongoing education. Y remains reluctant to engage with these options. As Y will soon transition to adulthood, the stage 3 panel recommended the Council should ensure these options are included in Y’s Pathway Plan. I am satisfied with the stage 3 recommendations and the Council’s actions so far.
Y’s access to therapy
- The Council did not provide the therapeutic support Y needed to cope with past childhood abuse and trauma. Evidence shows it was difficult to engage Y in therapeutic counselling. The Council has agreed that it will continue to offer Y the opportunity to engage in counselling into adult hood. The Council confirmed that access to therapy will be included in Y’s Pathway Plan. I am satisfied with the Council’s proposed actions.
Other stage 2 recommendations
- Following the statutory investigation, the Council has undertaken a review of social work practice. It has:
- Created a Family Together Hub to provide co-ordinated early help and support for families in crisis.
- It has entered into a Framework Agreement with the West London Alliance so it has access to a greater range of placement providers. This it says will help commission residential placements more effectively.
- Commissioned specialist CSE services and Gangs Outreach Services.
- Reviewed its placement finding paperwork so young people’s profiles are better written and stress young people’s strengths.
- While not a feature in this case, it has strengthened its in house foster services, meaning it can manage future similar cases to this in its own Council area.
- It has introduced a Multi-Agency Resource Panel to identify combined educational therapeutic placements.
Stage 3 panel recommendations
- The review panel recommended the Council should formally write to Mrs X to explain what strategies and services it implemented to ensure Y was safeguarded from CSE. The Council agreed to this recommendation in its letter to Mrs X at the start of February 2018. The Council did not write to Mrs X until the middle of August 2018, after it received a letter from the Ombudsman. This was a delay of six months. There is no good reason for the excessive delay in writing to Mrs X and the Council has given no explanation for the delay. This is fault and caused Mrs X further uncertainty and delay in the complaints process.
Injustice to Mrs X, Z and Y
- Following the stage 3 review, the Council apologised for the instances where the statutory investigation concluded it could have better supported both Y and Z. It accepted it failed to provide Y with the appropriate therapeutic support while in its care. The Council said it would consider changes to its social care practice for the future and consider the learning from the support it provided to Y. The Council offered both Y and Z payments of £300 each. As outlined above, it has also explained several measures it has put in place following the recommendations made from the statutory investigation.
- The Council apologised to Mrs X that its services fell short of its standards. It further apologised for the frustration and distress she experienced. The Council offered Mrs X £250 to acknowledge her time and trouble in raising her complaints.
- This investigation has found the Council at fault for:
- The stage 3 panel finding there was evidence of continued sexual exploitation after Y was made subject to a care order and placed in the Council’s care
- Failing to meet the timescales set out in the statutory complaints process
- Failing to write to Mrs X in good time following a stage 3 recommendation.
- Mrs X said Y suffered significant harm and trauma while in the Council’s care between January 2015 and October 2016. The statutory investigation found Y continued to be sexually exploited and continued to abscond on more occasions than in the care of Mrs X. While I do not believe the Council failed in its duty to provide Y an education, its failure to properly safeguard Y clearly contributed to Y’s educational discontinuity. There is no way of showing the full impact the Council’s care had on Y, however they will need significant help and support going forward into adulthood.
- It is clear from the evidence that Mrs X had lost all faith in the Council and its ability to support her family. Mrs X spent a significant amount of time pursuing her complaints, and the delays in process added to her frustration and uncertainty. The Council’s reluctance to accept it failed to safeguard Y in its care gave further distress for Mrs X.
- In my view, the Council failed to offer Y a suitable remedy for the injustice it caused Y whilst they were in its care.
- The Council has agreed within one month of the final decision to:
- Apologise to Y for the failings identified by the stage 2 investigation and the stage 3 panel.
- Pay Y £1600 to recognise the failings identified by the stage 2 investigation and the stage 3 panel. This should be used for Y’s education, employment, training or housing in agreement with Y’s Personal Adviser.
- Pay Z £300 originally offered in recognition of its accepted failings.
- Pay Mrs X £300 in recognition of its accepted failing in handling her complaints and the delay in writing to her following the stage 3 review.
- The Council has agreed within three months of the final decision to:
- Provide a copy of Y’s Pathway Plan to the Ombudsman. This should include the Council’s offer of access to therapeutic support in adulthood. It should also include access for support in education, training and preparation for employment in adulthood
- Provide the Ombudsman with evidence of its implementation of the stage 2 recommendations, as outlined in paragraph 52.
- The Council has agreed within six months of the final decision to:
- Review its handling of the statutory complaints process to ensure similar delays do not happen in the future. In particular, it should review the significant delays in completing stage 2 and stage 3 of the process, and the delay in implementing the recommendations from both stage 2 and stage 3.
- I have completed my investigation. I have found fault leading to injustice and I the Council has agreed to my recommendations.
Investigator's decision on behalf of the Ombudsman