Manchester City Council (19 005 254)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 27 May 2020

The Ombudsman's final decision:

Summary: The Council has accepted that there were faults in the way it has looked after the complainant, when in its care, and since leaving care. In particular, the Council failed to ensure the complainant obtained a passport and this has had significant consequences for him. The Ombudsman has now considered the injustice caused by the Council’s errors. The Council has accepted the findings and recommended actions.

The complaint

  1. The complainant, who I refer to as Mr X, complains about services provided to him when he was in the care of the Council and since leaving Council care. In particular, he complains that the Council failed to obtain a passport for him even though aware of the need for him to have one. Mr X is being supported in making this complaint by an advocate.
  2. The complaint has been considered under the Children Act 1989 statutory complaints process by the Council. The Council’s Stage 2 investigation upheld four complaints. Matters were considered by a Stage 3 Complaints Review Panel who made further recommendations.
  3. The complainant says that the Council has failed to do what it promised following the Stage 2 report and the Stage 3 Complaints Review Panel.
  4. The complainant says that, as a result of the Council’s faults, in particular the lack of a passport, he cannot go abroad on holiday, he cannot work or attend a college of further education, he has been very anxious about his situation, and has been unable to access his own records so to better understand his background history.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered Mr X and his advocate’s comments;
    • made enquiries of the Council and considered the comments and documents the Council has provided;
    • spoken to Mr X and his advocate on the telephone; and
    • considered relevant legislation and case law.
  2. I issued a draft decision statement to Mr X, his advocate and to the Council. I have taken into account any additional comments.
  3. The Ombudsman’s final statement will be sent to the Office for Standards in Education, Children Services and Skills (Ofsted) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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What I found

Councils’ duties to support, protect and accommodate children in need and at risk

  1. Councils have a duty to safeguard and promote the welfare of children within their area, who are ‘in need’, by providing services appropriate to the child’s needs.
  2. Under s20 of the Children Act 1989, councils have a duty to provide accommodation for any child in need in their area who appears to them to need accommodation because:
    • there is no-one who has parental responsibility for the child; or
    • the child is lost or abandoned; or
    • the person who has been caring for the child is prevented from providing suitable accommodation or care. (Children Act 1989 section 20)
  3. A council may not provide accommodation in these circumstances if the person who has parental responsibility objects.
  4. Once the council accommodates a child, that child is considered a ‘looked after child’ (LAC). If the parent does not agree to the council accommodating the child, the council can apply to the Courts for an interim and full Care Order. A Care Order gives councils parental responsibility shared with the parents.
  5. A council should have an individual care plan for the child, and a process to review those plans. The planning about the child should be with the aim of safeguarding and promoting the child’s welfare, preventing drift and ensuring the work needed is carried out.
  6. Reviews of children’s cases are commonly referred to as LAC reviews and should take place every 6 months unless there is a need to consider the child’s needs before then.
  7. Where a child is in the care of the council, it must appoint an Independent Reviewing Officer (IRO) to oversee the care planning and to ensure the child’s needs are safeguarded and met.
  8. Section 22 of the Children Act 1989 provides that a council, so far as is reasonably practicable, shall ascertain the wishes and feelings of the child, the parents and any other person the council considers to be relevant regarding the matter to be decided.

Leaving care

  1. The law and government guidance set out councils’ legal duties to provide ongoing support for children leaving care.
  2. Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21. If the Council is helping them with education and training, the duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday).
  3. Councils should appoint each care leaver with a personal advisor, and each care leaver should have a pathway plan. The personal advisor will act as a focal point to ensure the care leaver is provided with the right kind of support. The pathway plan should be based on a thorough assessment of the person’s needs. Plans should include specific actions and deadlines detailing who will take what action and when. They should be reviewed at least every six months by a social worker.
  4. Pathway plans should continue for all care leavers continuing in education or training. The plan should include details of the practical and financial support the council will provide.

Statutory complaints procedures

  1. The Children Act 1989 and the Representations Procedure (England) Regulations 2006 provides that, those in receipt of certain services, can make representations or complaints to the Council. The Council has to investigate the complaint subject to certain restrictions.
  2. There are three stages to the statutory social services complaints’ procedure. The first stage allows an informal resolution of the complaint. If that is not possible, the complainant is entitled to a detailed independent investigation of the complaint. The Council may also appoint an Independent Person (IP) to oversee the investigation. At the final stage, an independent Complaints Review Panel can consider the complaint.
  3. Once the complainant has completed the statutory complaints procedure, he/she can refer the complaint to the Local Government Ombudsman, if they remain dissatisfied.
  4. Mr X’s complaint has been through all the stages of the complaints process.

Home Office advice for applying for passports on behalf of looked after children January 2009

  1. The Ombudsman cannot comment on matters of residency and status. But, as I understand it, the following is relevant to this case.
  2. Where necessary documents are unavailable (like a birth certificate), the advice to councils with children in their care was to contact the Border Agency to obtain a ‘status letter’, which could then recognise the child as a British citizen, subject to the Border Agency considering a wider range of evidence.
  3. Councils’ social services department are entitled to apply for passports for looked after children when they have parental responsibility under a Care Order. Without a Care Order, such an application cannot proceed without the person with parental responsibility’s consent.

UN Convention on the Rights of the Child (UNCRC)

Article 3, paragraph 1 says:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

  1. United Kingdom (UK) has implemented the UNCRC through legislation and policy initiatives. Of relevance to this case, the Children Act 1989 and the Borders, Citizenship and Immigration Act 2009, concerning the actions of the Home Office, set out the child’s welfare will be a primary consideration for public authorities.

The Home Office Immigration Rules – Part 7 Other categories

  1. This part of the Immigration Rules deals with cases of children who overstay their visa to the UK, who are separated from their parents and who are seeking leave to remain on the grounds of a private life.
  2. The requirements applicants under 18 must meet for leave to remain on the grounds of a private life in the UK are:
  • If under 18 years, a child who has lived continuously in the United Kingdom (UK) for at least seven years (discounting any period of imprisonment), can apply for leave to remain if it would not be reasonable to expect the applicant to leave the UK.
  1. After 18, the residency rule is more stringent, and a young person has to show that he/she has lived in the UK for more than half of their life.

Background events

  1. Mr X says that the Council was involved with his family since 2009 because of child protection concerns. He was placed in care as an emergency in 2013, which his mother consented to. Later the Council obtained a Care Order.
  2. When Mr X came into care, the Council’s social workers asked Mr X’s parents for a copy of his birth certificate and also asked his mother to sign a passport application. She refused but did sign a statutory declaration confirming Mr X’s parentage.
  3. In 2015, the Council completed the necessary forms to send to the relevant agency to try to obtain a birth certificate for Mr X. The Council contacted Mr X’s country where he was born. But that country was not able to provide a birth certificate and later confirmed that his birth had not been registered.
  4. In 2016, the Council approached the hospital where Mr X was born. But that also did not result in his birth certificate being obtained and the hospital had no trace of him.
  5. In mid-2016, the Council decided it needed legal advice. At a LAC review, the Independent Reviewing Officer (IRO) raised a concern about the delay in resolving this matter. At a further review later in the year, it was noted the matter of Mr X’s birth certificate and passport remained unresolved.
  6. The Council decided to apply to the Court to discharge the Care Order. It is not clear why the Council considered this appropriate. The IRO raised a concern, stating that, by discharging the Care Order, the Council would be relinquishing unfinished responsibility.
  7. The Council approached a charity to help it locate Mr X’s birth certificate. By late 2016, the IRO noted that the Council had less than two years to resolve the situation before Mr X became 18. Mr X said that he needed his passport urgently because he wanted to go on holiday. The IRO escalated her concerns through the dispute resolution process.
  8. At 16, Mr X received a National Insurance Number.
  9. In 2017, the Council found the address where Mr X used to live abroad. His mother confirmed the address and consented to further searches to be carried out.
  10. In August 2017, the Council decided to withdraw its application to discharge the Care Order and, as required, applied to the Court to do so. The Court agreed the withdrawal application.
  11. In November 2017, the social worker again referred the matter of Mr X’s lack of a passport and birth certificate to the Council’s legal department.
  12. In early 2018, the social worker was advised to obtain a ‘negative’ certificate from the Embassy (in the country where he was born) to show that there was no trace of Mr X’s birth. This was obtained and sent to the Embassy in the UK. In March 2018, the social worker obtained advice from a government agency.
  13. Mr X was advised by a voluntary agency to obtain legal advice from an immigration solicitor. He did so and was subsequently advised to get a test to see if his father was his biological father. The Embassy abroad stated it could not help further.
  14. The Council approached Mr X’s immigration solicitor, who advised the Council to approach Mr X’s mother to get information about whether she was British born and whether she was willing to have a test to prove Mr X’s parentage.
  15. In mid 2018, Mr X became 18. A personal adviser was appointed. He still did not have a passport. Children Services confirmed it would remain involved until Mr X obtained a passport. The Council agreed to meet the cost of Mr X’s immigration solicitor and to pay him a weekly allowance.
  16. In August 2018, Mr X made a complaint to the Council with assistance from his advocate. The Council learnt that Mr X’s mother had previously refused any parentage testing.

The statutory complaint investigation

  1. In February 2019, the Stage 2 Investigator concluded that:
      1. Although some efforts were made to obtain a birth certificate, it did not result in the level of progress which could reasonably be expected after two years;
      2. It took eleven months before the Council referred his case to an organization, who was able to contact the mother, whereupon she signed the required consent form (although this did not result in Mr X obtaining a birth certificate or identity documents (ID);
      3. There was no clarity about whether the Council should be paying Mr X’s national insurance contributions. Mr X was prevented from working because he did not have D);
      4. The Council did not tell Mr X whether he could have a different personal adviser, as he had requested.
  2. The Stage 2 investigator recommended that the task of obtaining a passport and arranging his British citizenship should continue until Mr X had a passport and that he should receive monthly updates from the Council.
  3. The Stage 2 investigator also recommended the Council apologised to Mr X for its faults and make a payment of £250 to recognise the avoidable distress and time and trouble in pursuing his complaint. She also recommended that senior management should review the Council’s process of obtaining passports for looked after children.
  4. On 6 June 2019, there was a Stage 3 Complaints Review Panel (the Panel) hearing. The Panel noted that Mr X’s immigration solicitor had been instructed to apply to the Home Office for discretionary registration for Mr X as a British Citizen by parentage and that genetic testing should proceed.
  5. The Panel recommended:
  • that Mr X should have access to his files, as agreed;
  • there should be consideration for life story work to be discussed with Mr X;
  • a dedicated caseworker would be commissioned with knowledge and experience of citizenship matters to help progress Mr X’s Home Office’s application;
  • senior managers should discuss learning from this case with a legal representative present to improve future social work practice;
  • there should be a payment of £1,000 to recognise the avoidable distress caused to Mr X by the Council’s delays in securing a passport.
  1. The Council considered the payment was too high and recommended a payment of £500 in addition to the £250 already paid to Mr X. The Council says that this has been paid into Mr X’s bank account. Mr X says that he has only received £500.

Subsequent events

  1. Between June and September 2019, Mr X’s solicitor pursued matters with the Home Office. The solicitor explained that there would be a problem proving paternity and maternity. The solicitor said that she needed to see Mr X so that he could sign the necessary forms.
  2. Later in 2019, Mr X’s father declined to have a genetic test and sadly Mr X’s mother died.
  3. The Council is now pursuing the option of having Mr X’s sister tested.
  4. In respect of life story work, the social worker has continued to offer appointments to go through Mr X’s personal file. But Mr X has been unable to attend meetings.
  5. The Council has agreed that, in future, there should be a standard practice of obtaining a child’s birth certificate at the onset of care proceedings, that legal advice should be sought at an earlier stage when there are difficulties in obtaining a looked after child’s birth certificate and passport and, in complex cases, there should be a ‘solution focused’ meeting to ensure a more planned approach to these types of problems.

Comments from Mr X

  1. Mr X says that the situation has been very difficult for him and he wants the Council to learn from this complaint. He considers that no other looked after child should have to experience the same avoidable distress caused by the Council’s failure to resolve his legal status and obtain a passport for him.
  2. Because of the Council’s failings, Mr X was not able to attend a family wedding with his foster family because he did not have a passport. That was very upsetting for him and meant he was excluded from a family event, which he would have liked to have attended.
  3. Mr X has also been very anxious about his status and, post 16 and post 18; he says he has been denied work and further education opportunities and cannot make an application to have a tenancy. Therefore, he had been staying with various friends, until recently, when the Council placed him in supported lodgings.
  4. Mr X says that the relationship with his personal advisor is better and she is helping him. However, she is now on long term sick leave. He still wants to see his personal files and have life story work. And he does not want the Council to forget this. But he would first like to resolve the most pressing issue and obtain a passport.
  5. The Council continues to pay him a weekly allowance.
  6. The advocate says that, in addition to the above, Mr X has not been able to apply for a provisional driving license and, although he was interested in applying to college for further education/training, he had not been able to do so without appropriate identity documents. She considers that the Council should have resolved the issue of Mr X’s birth certificate and need for a passport during the care proceedings. She considers that the Council must learn from this complaint to ensure other looked after children are not disadvantaged in the same way as Mr X has been.

Analysis

  1. The Council accepts that there have been unacceptable delays in obtaining a passport for Mr X and resolving his status in the UK. Sadly, Mr X’s parents have not provided the information which the Council had requested from them.
  2. But, as a looked after child, Mr X had to rely upon the Council, as his corporate parent, to safeguard and promote his welfare. Ensuring he had a passport and appropriate identity documents was a fundamental necessity and the process of resolving this should have started as soon as the care proceedings were commenced, and Mr X came in to care in 2013. Seven years later the matter remains unresolved.
  3. In addition, it seems to me that there were options which the Council could have pursued when Mr X was a looked after child. For example, it could have applied for him to have leave to remain under the 7 year rule. (see paragraph 31).
  4. It is also fault that the decision to approach an immigration solicitor was delayed and then appears to have happened because Mr X obtained advice that this was his best course of action. As corporate parent, the Council should have referred his case to an immigration solicitor sooner.
  5. The Council has already accepted it has been at fault and it remains anxious to resolve the problem for Mr X. The issue in this complaint is the resulting injustice to Mr X and how best to remedy it.
  6. My view is that the resulting injustice is significant because Mr X has potentially been denied the opportunity to receive certain services at 18, in particular in respect of work, further education, a tenancy and a provisional driving licence. Mr X says his ‘life has been on hold’ and his pathway to independence curtailed.
  7. Specifically, Mr X also says that he has had three job offers but, when he could not provide a passport, these offers were withdrawn. He has also been unable to obtain a tenancy on a property and, although interested in pursuing education or training, he has not been able to do so.
  8. The Ombudsman cannot say exactly what might have been different but for the Council’s faults. But, had the Council acted more quickly, there is a possibility Mr X would have had a passport before he turned 18 and, then, in turn, would not have lost out on other opportunities and benefits once he became 18.
  9. In addition, Mr X has been anxious about his security in respect of his right to remain in this country. This now is a matter for his solicitor to resolve. But he has been caused avoidable distress.

Agreed action

  1. I consider that the lost opportunities to Mr X should be recognised by a higher financial payment than the Council has made.
  2. Where there has been avoidable distress, the Ombudsman’s recommendation, to remedy such injustice, is symbolic and payments are normally between £300 to £1,000 depending on the severity of the injustice. I am satisfied that Mr X’s injustice merits a payment at the higher end.
  3. To remedy this complaint, I recommend the following within two months of the date of the final statement. The Council has agreed to these actions:
      1. a payment of £1000 in total. Mr X says it has only paid £500 to date whereas the Council says that it is £750. The Council should resolve this with Mr X and make up any shortfall so that he receives £1,000 in total;
      2. to recognise the fact that Mr X may have missed out on three job offers, I recommend a further payment of £600 (£200 for each job offer that Mr X could not take up) subject to Mr X providing some evidence of these lost jobs;
      3. it is also important to ensure Mr X obtains a passport. Therefore, the Council needs to continue to fund the cost of Mr X’s immigration solicitor until such stage his residency predicament is fully resolved. If Mr X has any concern that this will not be the case, he can make a fresh complaint, first to the Council and then to the Ombudsman;
      4. Mr X has missed out on the full range of leaving care services, in particular help with further education or training and in obtaining secure accommodation. Once Mr X obtains a passport, I recommend that the Council should consider Mr X as a ‘new’ care leaver, aged 18, and that the other leaving care services (which he has missed out on) should be on offer to Mr X as if he had just left care. So, this would mean services might extend beyond Mr X becoming 21, or 25, if he pursues further education at a local College. Consideration should also be given to whether Mr X is entitled to Council accommodation as a new care leaver. There would need to be a new pathway plan considering these options, clearly recording the decisions made;
      5. the Council is anxious to learn from this complaint and it has a devised a way to deal with similar situations better for the future. That is good practice. But I recommend that the Council now reviews all current looked after children cases, where the child/young person does not have a passport, to ensure that the Council’s new procedures are working in practice and that every effort is being made to ensure that no looked after child will reach the age of 18, without the appropriate passport and ID. It should report its findings to the Ombudsman;
      6. the Council also needs to ensure that, when there are care proceedings, it should obtain from the parents the child’s identification documents as a matter of routine, especially so if the court then decides the child should be in care.

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Final decision

  1. The Council has accepted that it has been at fault, and these faults have caused injustice. I have recommended actions to remedy the resulting injustice, which the Council has accepted.
  2. I have therefore completed my investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman

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