Decision : Closed after initial enquiries
Decision date : 29 Mar 2019
The Ombudsman's final decision:
Summary: Mr X complains the Council removed him and his brother from their foster carers without good reason and failed to properly manage his subsequent care. He also complains the Council has failed to investigate his complaint under the statutory complaints process. The Ombudsman will not investigate this complaint. Mr X could have raised his concerns with the Ombudsman sooner and it is unlikely we would now be able to carry out an effective investigation. It is not appropriate to exercise discretion to investigate Mr X’s complaint outside the normal timeframes.
- The complainant, whom I shall refer to as Mr X complains the Council removed him and his brother from their foster carers in 2010 without proper planning and without good reason. He also complains about the way the Council managed his subsequent care.
- In addition, Mr X complains the Council has failed to investigate his complaint under the statutory complaints process.
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)
- However we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
- I have considered the complaint and the documents provided by Mr X and the Council. I have also sent a statement setting out my draft decision to Mr X and the Council and invited their comments.
- I have considered Mr X’s advocate’s response to the draft decision.
What I found
- The Council removed Mr X and his brother from their long-term foster carers, Mr and Mrs Y in March 2010. Mr X was eight at the time.
- In January 2011 Mr X and his brother complained to the Council and asked to be returned to Mr and Mrs Y. The Council confirmed it was aware of their views and wishes, but a decision had been made that they could not go back to Mr and Mrs Y. The Council invited Mr X and his brother to contact the Complaints Case Manager if they were not happy with the explanation provided.
- When they were removed from Mr and Mrs Y’s care, Mr X and his brother were initially placed together. They were then separated and placed with different foster carers. When Mr X’s brother turned 18 he chose to return to live with Mr and Mrs X. In 2016 the court then granted a Special Guardianship Order so that Mr X could also return to live with Mr and Mrs Y.
- Having returned to live with Mr and Mrs Y, Mr X and his brother then made a further complaint to the Council in June 2016. They asserted they had been illegally removed from Mr and Mrs Y and asked for an apology and compensation for the way they had been treated. They also asked for the officers involved to be reprimanded.
- The Council acknowledged the complaint and confirmed that as it raised the same issues as their complaint in 2011 it would not now consider it. The Council advised Mr X and his brother they could contact the Ombudsman if they were unhappy with this decision.
- Mr X did not contact the Ombudsman at that time. In 2017 Mr X and his representative wrote to the Council again, they also contacted the Children’s Commissioner. The Council maintained it would not now investigate Mr X’s complaint given the amount of time that had passed since he first complained in 2011. The Council also confirmed it would arrange for an independent advocate to contact Mr X to provide help and advice.
- In October 2017 Mr X wrote to the Council setting out 12 grounds of complaint. These included some new complaints about matters that occurred between 2011 and 2015, but had not been raised before. In particular that:
- between 2011-2015, the Council unjustifiably denied Mr X any contact with his former foster parents even though Children's Services had acknowledged they were significant people in his life;
- in 2015, the Council misled Mr X’s former foster parents by untruthfully stating that he had refused to accept a 'Get Well' card;
- in 2015, the Council unreasonably refused to allow Mr X to attend his brother's 18th birthday party; and
- the Council failed to provide an advocate in 2010/11 to help Mr X formulate a complaint in accordance with statutory procedure.
- As set out above, we expect complainants to contact us within 12 months of them becoming aware of the problem. We can make an exception to that requirement if we think there are good grounds why the complaint was not made sooner, and we consider that we could still carry out an effective investigation. But the restriction is there because the longer ago events happened the harder it is to investigate.
- The events complained of occurred significantly more than 12 months ago. I must therefore consider whether it is appropriate to exercise discretion to investigate the complaint outside our normal timeframes.
- I recognise Mr X was very young at the time he was removed from Mr and Mrs Y’s care and would have required support and assistance to pursue this matter. Mr X maintains the Council did not provide an independent advocate. However Mr X appears to have had support, or the offer of support from various individuals and organisations, at different stages over the years.
- The Council’s records from July 2010 state Mr X and his brother were offered Voice advocacy and legal advice. Mr Z disputes this and states they were not given support from an independent advocate at this stage. Mr X and his brother may not have accepted support, but the records show it was offered. And Mr X has confirmed their social worker helped make the complaint in 2011. The Council states, and Mr X has confirmed he has had an independent advocate on several occasions since 2014.
- It is unclear how long Mr Z, has been assisting Mr X. In his correspondence to the Ombudsman Mr X states Mr Z has supported him over the last seven years, but in separate correspondence states he has only known Mr Z since 2015/2016. Mr Z’s own correspondence suggests he has been aware of/ involved in the matter since at least 2011, but has been unable to formally act as Mr X’s advocate.
- Whether or not Mr X had appropriate support and assistance in 2011, it is clear he was supported in making a complaint in 2016. I recognise Mr X was not supported by an independent advocate at this stage, but he was nevertheless able to make a complaint to the Council. The Council also clearly advised him at that time to contact the Ombudsman if he was unhappy with its response. Having been advised to contact us, I would have expected Mr X to raise his concerns with us in a timely manner.
- The suggestion to contact the Ombudsman was not in accordance with the statutory complaints procedure. But had Mr X contacted the Ombudsman in 2016, we could have considered the Council’s failure to follow proper process at that stage.
- I recognise Mr X’s complaint to the Council in October 2017 raises some new issues he has not previously complained about. But the substantive complaints relate to the historic matters Mr X complained about in 2011 and 2016. I am also mindful of the fact that the new issues occurred between 2011 and 2015. They do not relate to recent events and could have been included in his complaint in 2016. Mr X could also have raised his concerns about the failure to provide an independent advocate in 2010/2011 as part of the 2016 complaint.
- Notwithstanding that I am satisfied Mr X could have raised his concerns sooner, I have also considered whether we could carry out an effective investigation. The Council declined to consider Mr X’s complaint, in part, because the passage of time meant it was more difficult for people to remember things accurately, and some of those involved had left the Council. I share the Council’s view that it would be difficult to conduct a fair and accurate investigation into matters that happened as far back as 2010. Some of Mr X’s complaints depend on historical recollections of what was said or not said many years ago. It is highly unlikely that we would be able to come to a sound view on such disputes. In addition, any investigation of events from so long ago is likely to be hampered by modern document retention policies and the turnover of staff.
- In the circumstances, I do not consider it appropriate to exercise discretion to consider this complaint outside our normal timeframes. Mr X could have raised his concerns with the Ombudsman sooner and it is unlikely we would now be able to carry out an effective investigation.
- The Ombudsman will not investigate this complaint. Mr X could have raised his concerns with the Ombudsman sooner and it is unlikely we would now be able to carry out an effective investigation. It is not appropriate to exercise discretion to investigate Mr X's complaint outside the normal timeframes.
Investigator's decision on behalf of the Ombudsman