Swindon Borough Council (19 010 610)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 11 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s failure to provide information about her deceased daughter’s care while she was a Looked after Child. This caused significant distress to Mrs X. The Ombudsman finds the Council to be at fault because it was unable to show it made any meaningful enquiries about what happened the night Mrs X’s daughter died. To remedy the injustice caused to Mrs X, the Council has agreed to apologise, make a symbolic payment to her, make enquiries about what happened and reflect on its practices.

The complaint

  1. Mrs X complained about the Council’s inadequate response to questions she raised about how her daughter was cared for while in respite care before she died.
  2. She says this has caused her significant distress because she has been left not knowing whether poor care contributed in some way to her daughter’s death.

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What I have investigated

  1. I have only investigated the actions of the Council in this matter.
  2. Although Y died in November 2017, the Council did not provide a final response to Mrs X’s complaint until June 2019. I have therefore decided to use the Ombudsman’s discretion to investigate this complaint despite the relevant events taking place over 12 months ago.

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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. 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)
  3. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
  4. 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)
  5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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How I considered this complaint

  1. As part of my investigation I have:
  • considered the complaint and documents provided by Mrs X;
  • made enquiries of the Council and considered its response;
  • obtained a written statement from a former senior council officer now employed by a different local authority (referred to as Officer J);
  • obtained records from the relevant health authority;
  • considered the relevant law and statutory guidance;
  • spoken to Mrs X; and
  • sent a draft version of this decision to both parties and invited comments on it. Comments received have been taken into consideration.

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What I found

Relevant law and guidance

Looked after Child

  1. A Looked after Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority under section 20 of the Children Act 1989. The accommodation can be voluntary or by care order. Where respite care is provided a child becomes looked after when the care takes place over a certain number of days annually.
  2. The local authority has a duty under section 22 of the Children Act 1989:
  • to safeguard and promote the child’s welfare.
  • 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.
  1. To achieve these duties all looked after children must have a care plan which it must keep under regular review. 
  2. Every looked after child must have an Independent Reviewing Officer (“IRO”), a qualified and experienced social worker whose role is to oversee how well the local authority does its job as a corporate parent. The IRO is there to ensure the authority is meeting the child’s needs and the child’s voice is being heard.

Child death review

  1. At the time of Y’s death, the responsibility to undertake a review of a death of a child lay with the Local Safeguarding Children Board (created by the Children Act 2004). The requirements for such a review were set out in the Local Safeguarding Children Board Regulations 2006. Further guidance was set out in government guidance, “Working Together to Safeguard Children (2015)”.
  2. The purpose of a child death review is to identify any matters that are relevant to the welfare of children in the area, or to public health and safety, and to consider whether any action in response is required.
  3. The Council has provided the Ombudsman with a copy of its relevant policy, “Joint Agency Response and Child Death Protocol for Unexpected Deaths” (“the Protocol”). This is dated May 2019 and was drafted in response to more recent legislation. The obligations under this later legislation are broadly similar to the 2006 Regulations and so for the purposes of this decision, it was not necessary to make further enquiries of the Council about its earlier policy.
  4. Under the local multi-agency protocol, the health authority was the nominated lead agency responsible for arranging and leading the joint agency response.

What happened

  1. Mrs X’s teenage daughter, Y, was severely disabled. She had cerebral palsy and spastic quadriplegia. She was entirely dependent on others for all aspects of daily living. While she lived most of the time with her family, Y spent several nights over the course of the year at a local residential care home (“the Care Home”). This was arranged and funded by the Council. Because of the number of nights she stayed there, she was deemed to have LAC status. This provided a statutory framework for the care that was provided and placed certain obligations on the Council such as having a care plan and carrying out regular reviews.
  2. In November 2017, Y was staying at the Care Home for a short period of respite care. On 20 November 2017, Y went to school as usual and returned to the Care Home at the end of the school day. After being fed and personal care given, Y went to bed. When care staff went into her bedroom in the morning, she was unresponsive. Paramedics were called but Y was pronounced dead. The police also attended.
  3. The next day, a multi-disciplinary meeting was held at the local hospital under the local Protocol referred to above (paragraphs 16 and 17). In attendance were representatives from the health service, the Care Home, the Council, the ambulance service and the police.
  4. The Care Home provided a timeline about what happened in the hours leading up to Y’s death. The school, ambulance service and police also informed the review meeting about their involvement. All information was presented verbally, and no reports were prepared.
  5. The meeting concluded that there were no safeguarding concerns arising from Y’s death. The Council had no further direct involvement in establishing the cause of Y’s death. This was left to the Coroner who later determined she died of natural causes.
  6. Mrs X was unhappy with this conclusion. She felt the relevant authorities had been too quick to assume the cause of death because of Y’s severe disabilities. Mrs X wanted to know more about what happened in the hours leading up to her death. Initially she directed her questions to the health authority as lead agency under the Protocol. She was told to contact the Council and the Care Home but she found the Council’s responses to be vague and unhelpful. Frustrated by this lack of information and the time that had passed since Y’s death, in June 2019 she lodged a formal complaint. She asked the Council to provide the following information:
  • What staff were on duty at the Care Home and assigned to look after Y?
  • A copy of Y’s care plan including details about what care Y should have received.
  • Feedback from the Care Home about what they say happened the night Y died.
  • Whether the Council prepared a report for the child death review meeting?
  • Mrs X was aware that Y had cried out at night but no one had been to check on her. Mrs X wanted to know why and whether this carer was asleep.
  • Whether Y’s assigned carer had called in sick that night?
  • What written reports had been prepared under the Protocol?
  1. In response the Council said it had no information about staff members, what happened on the night and no reports had been prepared. It said the care plan “cannot be described as a plan that lists in detail the precise way in which Y’s care should be provided”. Instead the plan described Y’s needs. The senior officer offered to meet with Mrs X to discuss the matter if she so wished.
  2. Mrs X rejected this offer on the basis she was “seeking factual information surrounding the circumstances of Y’s death whilst she was in respite care that the Council provided”. She expressed her dissatisfaction with the Council’s failure to investigate, as well as the view reached by the Coroner.
  3. By way of final response, the Council confirmed it would not complete a separate investigation into the circumstances of Y’s death in isolation of other agencies. The Council said it could not provide minutes from the review meeting held the day after Y’s death for data protection reasons but advised Mrs X to contact the hospital as the “owner” of the minutes.
  4. Dissatisfied with this reply, Mrs X brought her complaint to the Ombudsman.

Analysis

  1. At the heart of this complaint is Mrs X’s need to know what happened in her daughter’s final hours while Y was effectively in the care of the Council and the Care Home. This is both understandable and reasonable.
  2. Y’s death was both sudden and unexpected. Because of this, Mrs X was keen to establish the cause of her daughter’s death and her focus in the early stages was to liaise with the coroner and health professionals. This meant it took some months for her to ask questions about what happened at the Care Home. It is clear from reading her earlier letters to the Council that she was trying to establish which agency may have the information she needed. She had not been invited to the initial Child Death review meeting so, I believe it is fair to say she was, left in the dark about where to go for the answers she needed.
  3. At first, she raised her questions with the Council informally, but in my view, the responses, did not provide any information at all about Y’s final hours. I share the view of Mrs X that they were vague and unhelpful. From the evidence I have seen, this is because the Council did not know the answers to the questions being asked. And as Y’s corporate parent, and the local authority that had commissioned the respite care, it should have done.
  4. When the Council did not provide an adequate response, Mrs X raised the matter as a formal complaint. This time her questions were more direct. For example, she asked, “Why the carer responsible for Y did not go to her when she cried during the night?”. The Council’s reply was, “…the Council has no written evidence contained within our records that enable me to answer this question”.
  5. Mrs X also asked for a copy of the detailed care plan setting out what care would be provided to Y while she was at the Care Home. The Council said, “The Council does not hold a copy of this plan on our records. I can only surmise that this was within a document held by the Care Home”. Her other questions were answered in similar, unhelpful terms.
  6. The Council’s position was that the post death analysis was dealt with under the multi-agency child death protocol, led by the local health authority. Other than its input into the child death review meeting held the day after Y’s death, the Council says it did not make any enquiries about what happened. This meant it was unable to answer most of Mrs X’s questions about what happened in the hours leading up to Y’s death.
  7. In her statement to the Ombudsman, the social worker who attended the review meeting (“Officer J”) said, “it was not the role of social care to make additional enquiries as this could have delayed or caused confusion to the police investigation”. She confirmed this meant the Council did not make any enquiries of the Care Home including having sight of the daily care records.
  8. From the evidence I have seen, particularly the case notes and the recollection of the lead social worker, the Council took the following action after Y’s death:
  • made one phone call to the Care Home.
  • had two conversations with a police officer.
  • notified the office where the IRO worked (and was told the IRO had left its employment).
  • attended a review meeting the day after Y died.
  • Notified parties who needed to know (health professionals, Y’s school, wheelchair provider).
  • Sent a sympathy card to Y’s parents.
  1. While I agree the Council had a limited role in the immediate aftermath following Y’s death, it did not mean the Council had no further obligations to answer the questions raised by Mrs X. I have had sight of a letter from Y’s Paediatric Consultant in which Mrs X was redirected back to the Council for her to obtain more information about what happened the night Y died. And so, this is what Mrs X did.
  2. The evidence shows the Council did little to try to resolve any uncertainly in Mrs X’s mind about what happened the night her daughter died. The Council was acting as Y’s corporate parent at that time and as such should have conducted at the very least some basic enquiries about what happened. This responsibility lay outside any role it had in the Protocol. A separate duty of care was owed to Y’s parents as the commissioner of the care provided to Y.
  3. At the very least I would expect any commissioner who had placed a LAC in a care home who then died to have asked to see the daily care records. The Council’s failure to do so is fault. There was further fault when it failed to do so when Mrs X asked entirely reasonable questions about the care her daughter received.
  4. One of the statutory duties to a LAC is implementing a care plan and carrying out regular reviews. Some of Mrs X’s questions were directly related to Y’s care plan. I find the Council to be at fault by failing to address Mrs X’s questions about this. Instead it directed her to contact the Care Home. This was fault. The Council remained responsible for the actions of the Care Home and so should have investigated the points raised by Mrs X.
  5. Due to the passage of time, I have only had sight of the social work case notes and Care Home daily log sheets. These raised several facts not mentioned in the Child Death Review Minutes:
  • Y was found with a pillow over her face that the police questioned due to Y’s lack of mobility.
  • Y had a high temperature while she was at school.
  • Y was crying when she was being put to bed.
  1. The reason for highlighting these apparent inconsistencies clearly demonstrates why, in its role as commissioner and corporate parent, the Council had a responsibility to make its own enquiries about the actions of the Care Home when questions were raised by Mrs X. Its failure to do so is fault.

Injustice to Mrs X

  1. Mrs X says the pain of losing her daughter was made far worse by not knowing what happened in her final hours. The Council should have been able to provide her with a factual account. Instead Mrs X has been left with uncertainty about what happened. This uncertainly has caused significant distress that requires a remedy.

Agreed action

  1. The Council has agreed to take the following action within four weeks from the date of my final decision:
      1. Apologise in writing to Mrs X for the faults identified in this decision statement.
      2. Carry out the enquiries necessary to respond in writing to the questions raised by Mrs X in her complaint to the Council. The Council should prepare a report detailing both the enquiries made and its conclusions. This report should be shared with both Mrs X and the Ombudsman.
      3. Pay Mrs X £1000 as a symbolic payment to acknowledge the significant, prolonged and avoidable distress caused by the Council’s failure to inform her what happened the night Y died. I have taken into consideration the Ombudsman’s “Guidance on Remedies” in making this recommendation.
      4. Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what the Council intends to do to ensure similar problems not reoccur. This report should be sent to the Ombudsman.

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Final decision

  1. The Ombudsman has found the Council to be at fault when it failed to respond to Mrs X’s questions about the quality of care given to her daughter before she died. The Council has agreed a suitable remedy and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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