Summary: The Council failed to provide Miss X’s son with appropriate levels of care and support whilst he was in the Council’s care. The Council identified this during its investigation of Miss X’s complaint but failed to provide a remedy for the injustice this caused. The Council should pay Miss X £1500 to recognise the distress caused and her time and trouble pursuing this complaint. The Council should also pay Miss X’s son £1000 to recognise the uncertainty he has been caused.

The complaint

1. Miss X complains a stage 3 panel did not properly consider her complaint under the statutory children’s complaint process. Miss X says:
• The Panel did not properly consider the Council’s case.
• The Chair of the Panel made derogatory remarks about Miss X’s representative in the Panel’s final report.
• The Panel and the Council have not considered paying Miss X a financial remedy as a result of delays in the complaint process.
• The Council have not accepted all of the Panel’s recommendations.
2. Miss X says this has left her feeling frustrated with the complaint’s process and she has lost faith in the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. 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

7. I have spoken to Miss X’s representative about her complaint and considered evidence he provided to the Ombudsman.
8. I have also considered information the Council provided in response to my enquiries. This includes its comments on the complaint and the stage 3 panel’s report.
9. I have considered the Ombudsman’s guidance on remedies which is available on our website.
10. I have written to Miss X and the Council with my draft decision and given them an opportunity to comment.

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What I found

Children’s statutory complaints procedure

11. 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 Investigating Officer 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. (Children Act 1989 Representations Procedure (England) Regulations 2006 & “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”)
12. 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 and stage 3 panel.
13. Statutory guidance sets out “general principles of redress”. It says remedies “will include, but are not restricted to, financial redress”. (“Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others” paragraph 6.3.1)
14. The guidance directs councils to the Local Government Ombudsman’s guidance on redress which is available on our website. (“Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others” paragraph 6.4.3)

What happened

15. In 2013 Miss X’s son, Z, was placed in residential care when Miss X and foster carers were unable to manage his behaviour. Z was later made the subject of a care order in February 2015 when Miss X threatened to withdraw her consent to him being in residential care.
16. In January 2017 Z moved to another residential placement.
17. On 21 February 2017 the Council responded to Miss X’s complaint about her son, Z’s, placement in residential care. Miss X said this had disrupted Z’s education and she was concerned about risks the Council had identified relating to Z’s previous placement.
18. The Council said Z’s previous placement had only become a risk during the last three months of his stay due to Z’s behaviour. The Council also explained Z was enrolled on an educational course “and doing well”.
19. Miss X was unhappy with the Council’s response to her complaint and on
20. On 31 March 2017 Z left residential care and returned to live with Miss X.
21. On 7 August 2017 there was a court hearing regarding the revocation of the care order for Z. The Council says it applied to revoke the care order because Miss X and Z were no engaging with the Council. Neither Miss X or Z attended the hearing. The court revoked the care order.
22. Miss X raised a complaint at stage 2 of the statutory complaints. The nature of the complaint was discussed and agreed with Miss X in a meeting on 6 September 2017.
23. The Council appointed an Investigating Officer and Independent Person who met with Miss X to discuss her complaint on 21 September 2017. Miss X asked for another opportunity to discuss the nature of her complaint with the Investigating Officer and Independent Person. The Independent Person discussed the complaint with Miss X again on 17 October 2017 as the Investigating Officer was not available.
24. The Investigating Officer attempted to speak to Z during the investigation into the complaint. Attempts included hand delivering a letter to Z at Miss X’s house. However, Z was not willing to engage.
25. The stage 2 investigation considered the following complaints:
• Z’s move from one residential placement to another was poorly managed.
• Z’s educational needs have not been addressed proactively and his statement of special educational needs was allowed to lapse without challenge.
• The arrangements for moving Z in with Miss X and his leaving care were not properly managed. The Council did not prioritise Z and Miss X’s needs or take account of their views.
• The Looked After Child (LAC) Review process and in particular the Independent Reviewing Officer (IRO) failed to properly assess Z’s needs and progress of the care plan. Z and Miss X’s views were not taken into account.
• The Council’s communication with Z and Miss X about his care has been poor and resulted in confusion and misunderstanding.
26. The Investigating Officer set out her findings into the complaint in a report dated 11 December 2017. She found:
• Concerns about Z’s safety were “promptly reported to” Miss X. However Miss X was not present at the LAC Review meeting prior to Z being moved and there was a delay in sending out the minutes. The minutes of the meeting “did not specifically endorse a placement move”. The Investigating Officer said it would have been “preferable” to have held another LAC Review meeting before Z was moved.
• Z’s statement of Special Educational Needs was provided by another Council. That Council ended the statement as it did not feel Z required a high level of support. The Council did not challenge the decision at the time. When this issue was identified there was confusion about who would appeal the decision. However this did not impact on Z as appropriate education was available to him during this period, although Z has not always engaged with attempts to encourage him to attend.
• The Council identified that Z moving back into its area might result in him moving back in with Miss X. However this was the only placement available at the time. The Council has attempted to provide support to Miss X and Z but “this has not been successful largely due to their reluctance to co-operate”.
• There was confusion about who was supporting Z to claim compensation when he was assaulted by a police officer and his complaint was upheld by the Police Complaints Commission. This was because the IRO had not properly recorded who was following up on this action. However, Z began to disengage from support and so it has not been possible to follow this up.
• The Council should have done more to engage and attempt to communicate with Miss X and Z. The onus was on the Council to continue to try and engage with the family. The Council should have tried to find a way to communicate directly with Z once he returned to live with Miss X.
27. The Investigating Officer recommended the Council:
• Apologise to Miss X and Z for where the service provided fell below accepted standards.
• Confirm to Miss X what action it intends to take for support Z as a care leaver and what action it intends to take to ensure the same mistakes are not repeated in other cases.
• Attempt to rebuild the relationship between Miss X and Z including what steps will be taken if the relationship breaks down again.
• Agree priorities for future support for Z.
• Consider whether the difficulties experienced by Miss X and Z are “widespread” and address any systematic issues identified.
• Consider whether more needs to be done to ensure social workers and IROs are “consistently mindful of young people’s rights, priorities and timescales when care planning”.
• Ensure that stage 1 complaints are not responded to by managers who has some involvement in the matter complained about. This is because Miss X made two complaints at stage 1 and both were responded to by a manger for the service area dealing with Z’s care.
28. The Council wrote to Miss X on 19 December 2017. The Council accepted the Investigating Officer’s findings and most of the recommendations. However, the Council said it saw no reason to employ an independent mediator to rebuild its relationship with Miss X and Z. The Council also said there was no issue with managers for a service subject to a complaint responding to stage 1 complaints. The Council said when the complaint was about the action of the manager their line manager would respond.
29. The Council said Miss X could submit a complaint to the stage 3 independent review panel within 20 working days if she remained unhappy.
30. Miss X phoned the Council on 3 January 2018 to request it consider her complaint at stage 3 of the statutory complaints process. The Council wrote to Miss X on the same day to confirm her complaint would be progressed to stage 3.
31. The Council wrote to Miss X again on 18 January 2018 to confirm the panel hearing would take place on 21 February 2018.
32. Mr Y attended the hearing on 21 February 2018. Miss X did not attend. The panel said Mr X could not act as an advocate for Miss X. Mr X said he was able to speak on Miss X’s behalf due to her disability. The panel decided to adjourn the hearing and offer to arrange an advocate for Miss X. The panel asked Mr Y and Miss X to provide details of their objections to the findings of the stage 2 investigation.
33. Miss X says she dealt with the chair of the panel some years ago although she has not passed this information on the Council. Mr Y says he dealt with the chair of the panel when she was working for the Council and says she should not be dealing with the stage 3 complaint because of this.
34. The Council says Mr Y is not an appropriate advocate for Miss X. The Council says Mr Y can support Miss X at the panel but he cannot speak on her behalf.
35. On 1 March 2018 the Council wrote to Miss X to say it had rearranged the stage 3 panel hearing for 13 April 2018. The Council said it was prepared to provide
    Miss X with an advocate free of charge.
36. The Council spoke to Miss X on 7 and 8 March 2018 and then wrote to her on 8 March 2018. The Council said the chair of the panel was independent. The Council repeated its offer to provide Miss X with an advocate and said Mr Y could attend in a supporting role but not as an advocate. The Council asked Miss X to confirm whether she wanted to continue with her complaint at stage 3.
37. The Council spoke to Miss X on 14 March 2018. Miss X said she was not satisfied the chair of the stage 3 panel was independent and was unhappy the Council would not accept Mr Y as her advocate. Miss X asked that the Council agree that she could take her complaint direct to the Ombudsman.
38. Mr Y complained to the Ombudsman on behalf of Miss X. The Ombudsman found fault with the way the Council had dealt with Miss X’s complaint. We found that:
• The chair of the stage 3 panel had previous dealings with Mr Y and so could not be considered “independent”.
• The Council and the stage 3 panel were at fault for failing to allow Mr Y to represent Miss X.
39. We recommended the Council arrange for a further stage 3 panel to consider the complaint. We also recommended that the panel consider recommending a financial remedy for having to pursue a complaint to the Ombudsman rather than having her stage 3 complaint heard properly in the first instance.
40. The stage 3 panel produced its report in June 2019. The panel found:
• The end of Z’s residential placement was poorly managed. The panel found Miss X and Z were not properly prepared for “likely challenges and risks for his return [to Council’s area] and the [Council] were clearly aware of the potential for those difficulties to immediately surface...”
• Z’s educational needs were not properly addressed. The panel said “[The decision] not to convert the Statement of needs to an Education, Health and Care Plan... should have been the subject of proper informed discussion with [Miss X and her son] and [the Council] as corporate parent and if any disagreed with the decision, and appeal should have been progressed into the SEND tribunal”. The panel went on to say that the “part time timetable which was [Miss X’s son’s] educational experience for some of his time in care was not likely to have been sufficient to meet his needs and will have limited his capacity to make educational progress”.
• The arrangements for placing Z back in the Council’s area, including placing him with Mrs X, have not been adequately planned and supported. The Council failed to consider Z’s needs and did not consider the views of Z or Miss X. The panel said there was no evidence of “a workable plan by [the Council] as to how [Z] could be supported and [Miss X] assisted to keep herself safe in her own home, given that [Z] was known to always gravitate there for significant periods of time”.
• The Council’s Looked after Child (LAC) review process failed to assess Z’s needs and the progress of his care plan. The panel found that review minutes “indicate little or no work between the social worker and [Z], no clear work on his drug-taking, concerns about his lack of suitable education and limited engagement with the educational opportunities on offer, significant numbers of missing episodes, potential concerns about [child sexual exploitation] no work on his independence building skills, poor relationships between [Z and Miss Z] no assessment of his health needs etc.”
• Communication between the Council and Z and Miss X about his care was poor and resulted in confusion and misunderstanding. The panel said “the needs of [Z and Miss X] were such that more adjustments should have been made to assist [Miss X] to be supported in her care of her son”.
41. The panel said “there appear to have been significant periods of time when [Z] was in care but not seen by his social worker. For some of that time he was in a residential setting deemed to be inadequate by OFSTED and during his time in Oswestry he was exhibiting risky and challenging behaviour. It is unclear how this situation was being allowed to continue or responsibility for the management of his safety and welfare escalated within [the Council]”.
42. The panel made recommendations to remedy the injustice caused as a result of the fault it had identified. The panel said its recommendations “reflects to principles outlined in the Parliamentary and Health Ombudsman’s guidance for the management of complaints”. The panel said the Council should:
• Apologise to Miss X and Z for failing to clearly outline that the Council was not seeking to support converting his Statement of special educational needs into an EHCP and what the consequences of this would be.
• Seek to determine what support (including financial support) can be given to assist Z to identify and achieve his educational/ vocational goals.
• Consider how best to support Z in gaining the independence skills which were no able to be encourages and supported whilst he was in care. Consideration should be given as to whether this should be commissioned from an independent provider given the breakdown in relationship between the Council and Miss X and Z.
• The Council should ensure that Z is given direct help from a suitably experienced and skilled person to pursue full compensation for the injuries he sustained form the assault by the Police.
• Miss X should be supported in her own right to enable to stay safe from safeguarding risks in relation to Z. The Council should apologise for the way in which Z’s care order was able to be discharged without her views and concerns being given appropriate weight and consideration.
43. The panel’s report and minutes of the meeting say the Council did not provide it with a copy of the Ombudsman’s previous decision and recommendations. Mr Y had to raise the Ombudsman’s findings with the panel including the recommendation that the panel consider a financial payment to recognise the time and trouble Miss X had been put to pursuing her complaint.
44. The Council responded to the panel’s findings in a letter dated 15 July 2019. The Council did not say whether it agreed with the panel’s findings but responded to the panel’s recommendations:
• The Council apologised for failing to explain it was not seeking to convert Z’s Statement of special educational needs into an EHCP.
• The Council said Z’s personal advisor would continue to provide him with support until he turns 25.
• The Council said it would not commission an independent provider to support Z. The Council said this was because Z already had a personal advisor who can provide this support.
• The Council agreed to speak to the police to discuss compensation but needed Z’s consent to do so. The Council said it would provide details of a solicitor if this was not possible.
• The Council offered to refer Miss X to its adult safeguarding team or advised her to contact its “Advice and Referral Team” and provided a contact number.

My findings

45. The stage 3 panel have identified significant fault in the support the Council provided to Miss X and Z. There is nothing I could add to these findings through further investigation.
46. However, the panel and the Council have failed to acknowledge the significant injustice caused to Miss X and Z as a result of those faults as well as the recommendations made by the Ombudsman in our previous investigation into these complaints. Failure to do so was fault.
47. The stage 3 panel refer to having considered Parliamentary and Health Service Ombudsman guidance on remedies, but this is not the guidance set out in statutory guidance on children’s complaints. The panel should have considered the Local Government and Social Care Ombudsman’s guidance on remedies. Failure to do so was fault.
48. As a result of the fault identified by the panel Miss X and Z have been caused the following injustices:
• Z was put at risk and did not receive appropriate care and interventions from social workers between 2013 and 2017. This includes support with accessing education. However Z has not always engaged with the Council’s attempts to provide care and support. I cannot know if things may have been improved had the Council acted differently. At best I can say the Council’s failure to provide Z with an appropriate level of care and support has caused him distress and uncertainty.
• Miss X has been caused distress as a result of the Council’s failure to provide Z with appropriate care and support, including support in accessing education. Furthermore, there has been fault in the way the Council handled her complaints. This means she has been put to significantly more time and trouble than she would have been had the Council dealt with her complaints properly.

Agreed action

49. Following my recommendations the Council has agreed to take the following action to remedy the injustice to Miss X and Z as a result of the fault I have identified:
• Pay Z £1000 to recognise the uncertainty and distress caused to him arising by the Council’s failure to provide him with appropriate levels of care and support.
• Pay Miss X £1500 to recognise the distress caused to has as a result of the Council’s failure to provide Z with appropriate levels of care and support and also to acknowledge the time and trouble caused as a result of the failings in its handling of her complaints.
50. The Council should take this action within 8 weeks of my final decision.
51. The Council should also arrange for complaints staff and panel members to receive training in handling children’s complaints. The Council should confirm to the Ombudsman that it has arranged appropriate training and provide details of courses booked and dates training will take place within three months of my final decision.

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Final decision

52. I have completed my investigation as I have found fault causing injustice. The action I have recommended is a suitable way to remedy this.

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Investigator's decision on behalf of the Ombudsman