Summary: Mr D complains about the way the Council dealt with the circumstances around his mother's death when he was a looked after child. The Ombudsman has found fault in record keeping, a looked after child review practice, and complaint handling. The Council has agreed to apologise and make a payment to Mr D to acknowledge the injustice caused.

The complaint

1. Mr D complains the Council:
1. Did not tell him his mother was seriously ill in 2011, so he lost the opportunity to say goodbye before she died
2. Told him about the circumstances of his mother's death in 2015 in an insensitive way, causing him significant distress
3. Took three years to respond to his complaint and did not answer his questions, causing him time and trouble

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.

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How I considered this complaint

5. I considered the Council’s response to my enquiries. I issued two draft decision statements to Mr D and the Council and considered the comments I received.

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What I found

6. A looked after child (LAC) is any child who is subject to a care order. The local authority has a duty under section 22 of the Children Act 1989:
• to safeguard and promote the child’s welfare; and
• to make such services available for children who are cared for by their own parents as the local authority considers to be reasonable in the child’s case.
7. To achieve these duties all looked after children must have a care plan which is kept under regular review.

Complaints procedure

8. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Independent Investigator and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review.
9. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers the investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

Background

10. In 2011, Mr D was 11 years old and in foster care under a care order. His birth mother, Miss J, sadly passed away in hospital in May 2011. Mr D’s foster carer told him the news the next day after school.
11. In January 2015, Mr D attended a LAC review. At the meeting Mr D was given a LAC care plan progress report. The report set out some of the details around the circumstances of Miss J’s death that Mr D had not seen before. In particular, the report said Mr D “had not been informed his mother’s life support machine was going to be turned off, despite [the family support worker knowing] this was going to happen the day before.”
12. Mr D made a formal complaint in September 2015 about the way this information had been shared with him. He also complained that he had not been told his mother was ill or given a chance to visit her before she died.
13. Following a meeting to discuss his concerns, there was correspondence between Mr D, the Council and his foster carer until a formal stage 1 response was issued in May 2017.
14. Mr D was dissatisfied with the response, which he felt did not answer all his questions. He asked for the complaint to be escalated to stage 2 in September 2017. An independent investigating officer was appointed and the complaint investigation report was issued in December 2017.

Mr D’s complaint

15. The independent investigation upheld Mr D’s complaints. It concluded:
1. Due to incomplete case records and conflicting information, the May 2017 stage 1 response could not have said why Mr D had not been told that his mother was seriously ill in hospital. It was unclear what time the family support worker had found out that Miss J was seriously ill. The independent investigator could therefore make no finding about whether Mr D could have been informed sooner or would have been able to visit his mother in hospital.
2. The LAC care plan progress report used insensitive language and contained inaccurate and unsubstantiated information. It should have been shared with Mr D in advance of the LAC review meeting. It was unacceptable for the information to have been shared with him in the way it was.
3. The complaints team had tried to obtain the information needed to respond to Mr D’s complaint about events in 2011, but there was significant drift and delay in this being provided. The Council had failed to consider escalating the complaint to stage 2.
16. The report recommended policy and practice improvements and that the Council consider offering Mr D compensation to acknowledge the stress and upset he had been caused. It also recommended the Council support Mr D in understanding and processing what had happened
17. The Council wrote to Mr D in January 2018. It accepted the independent investigator’s findings and apologised for the distress caused. It offered Mr D £150 to acknowledge the delay in responding to his complaint.
18. The Council did not consider compensation to be appropriate, because the investigating officer had reached no finding on whether Mr D could have been told about Miss J’s illness sooner. This was “due to the level of information missing on our systems coupled with inconsistency and lack of recording.”
19. The Council held a restorative approach meeting with Mr D in May 2018. It suggested he consider whether counselling would help him come to terms with events around the death of his mother. Mr D complained to the Ombudsman in January 2019.

My findings

20. I have considered the independent investigator’s findings and the recommendations made by the Council.
21. The independent investigator found that poor case records in 2011 meant it was not possible to say why Mr D had not been told about Miss J’s illness. Nor was it possible to say whether there would have been time for him to visit her. The Council says this means it cannot offer Mr D any payment for distress.
22. However, the poor case recording is fault. It has resulted in uncertainty for Mr D; he will never know whether he lost an opportunity to see his mother before she died. That is a significant injustice, which will continue to affect him throughout his life.
23. The Council has accepted there was fault in the way Mr D was told about events in 2015 and has offered him counselling. I cannot say that any mental health issues Mr D may have now are a result of the events of 2015. However, I consider the lack of sensitivity in explaining to Mr D what had happened caused him significant distress and compounded the injustice of not having a full explanation.
24. The Council has accepted there was fault in the way it dealt with Mr D’s complaint. There was a significant and avoidable delay in taking the complaint through the statutory complaints procedure. However, I do not consider its proposed remedy for the time and trouble this caused to be sufficient. Mr D was left with unanswered questions about the circumstances surrounding his mother’s death for over two years. This would have caused him distress and anxiety. I have also taken into account that Mr D was under 18 and therefore more vulnerable.
25. I welcome the actions the Council has taken to improve practice since Mr D’s complaint. These include reviewing how information about important life events is shared with looked after children and changing the way staff are performance managed. The Council has also introduced a new IT recording system for its complaints process, provided refresher training and improved the way complaints are escalated.
26. In response to my first draft decision, Mr D said he had suffered significant injustice which he did not consider was remedied by the recommended actions. He also said he did not consider further counselling would be useful. I have considered his comments and taken advice. I agree that Mr D’s injustice is greater than I set out in my first draft decision. Whilst the Council is not responsible for Miss J’s passing, its poor record keeping, poor LAC review practice and delay in dealing with Mr D’s complaint have caused him significant and prolonged distress.

Agreed action

27. Within a month of my final decision, the Council has agreed to:
• Apologise to Mr D
• Pay him £500 to acknowledge the prolonged uncertainty caused by poor record keeping
• Pay him £500 to acknowledge the distress caused by the insensitive way he was told of events in 2015
• Pay him a further £200 for the time and trouble caused by the delay in responding to his complaint (The Council has already made a payment of £150 for this)

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Final decision

28. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman