Decision : Upheld
Decision date : 17 Dec 2020
The Ombudsman's final decision:
Summary: Mr S complained, through his representative, the Council failed to properly plan for his release from custody and failed to support him as a child in need. This caused him distress because he did not have a suitable address or support plan, which would have allowed him to take advantage of early release. He did not have a permanent address or full-time education in place from his automatic release date even though he was only fifteen years of age at the time. There is evidence of fault by the Council and it has been asked to apologise, make payments and amend its procedures so it begins planning for children’s releases earlier.
- The complainant, whom I shall call Mr S, complains that the Council:
- failed to support him as a child in need in detention and refused to conduct a timely assessment of his needs until pre-action correspondence was sent;
- failed to accommodate him and identify suitable accommodation to enable his early release on 26 April 2018 from custody on home detention curfew (HDC); and;
- failed to provide suitable accommodation and education for him upon release from custody at his automatic release date on 7 September 2018 causing significant avoidable distress and impacting on his life chances.
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)
- 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)
- 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.
- 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)
How I considered this complaint
- I considered the information submitted by Mr S’s representative with this complaint and spoke with them on the telephone. I made enquiries of the Council and assessed its response. I refer to various paragraphs of the Children Act 1989 and information from the United Nations (UN) on resettlement of children leaving prison. I also refer to the National Standards for Youth Justice Services (2019) and Prison Service Order 6700. I sent Mr S’s representative and the Council a copy of my draft decision and took their comments into account before issuing a decision.
What I found
- Mr S received a custodial sentence in October 2017 when he was 15 years old.
- He was remanded into custody in June 2017. At the time he was placed on remand Mr S became a looked after child but he lost that status when he was given a custodial sentence. He did not have care leaving status when he was released. However, he was a child in need under Section 17 of the Children Act 1989.
- Section 17 says that a child is in need if: “they are unlikely to achieve or maintain or to have the opportunity to achieve or maintain a reasonable standard of health or development without provision of services from the Local Authority or their health or development is likely to be significantly impaired, or further impaired, without the provision of services from the Local Authority or they have a disability”. Mr S needed the Council’s support and assistance to provide him with accommodation and education upon release. He also needed the Council to keep him (and his family) safe from possible reprisals and from returning to the patterns he adopted leading up to the custodial sentence. He needed to be settled into a new area.
- Accommodation can also be provided to children in need under Section 20 of the Children Act 1989, if their families are: “prevented (whether or not permanently, and for whatever reason) from providing (them) with suitable accommodation or care”
- Mr S had an early release date of 26 April 2018. This means that Mr S could have left custody under a home detention curfew (HDC) provided he had accommodation and a support plan in place. An HDC is where someone is expected to be at their home address at certain times. This might be, for example, between 7pm and 7am every day. The guidance on home detention curfew in place at the time (Prison Service Order 6700) points out that “for most eligible prisoners, HDC must be viewed as a normal part of his or her progression through the sentence. Prisoners will normally be released on HDC unless there are grounds to indicate the prisoner is unlikely to complete successfully the period on HDC”. There was no concern expressed about Mr S being ‘unlikely to complete (this) successfully’.
- Mr S stayed in custody until his ‘automatic release date’ of 7 September 2018, which was before his 16th birthday.
Lead-up to early release date
- The Council did not start to consider provision for Mr S’s release until 16 April 2018 (i.e. ten days before his early release date), when the Howard League for Penal Reform, acting as his representative, threatened legal action unless the Council carried out an assessment of Mr S’s needs under Section 17 of the Children Act 1989. The Council’s initial response was that Mr S was not in need because he could return to his home address and his family would identify education for him.
- Mr S was not allowed back to his home address because of the risks to him and his family, which had been made clear by the police and staff at the placement. Going back to his home address was also against the terms of his licence.
- The Council carried out an assessment on 23 April 2018. This offered three alternative scenarios for the future:
- That Mr S would stay in custody so the Council could help his family find accommodation outside of the Council’s area;
- That if a) was not possible then Mr S would stay in custody while full time education outside of the Council’s area was identified for him (because he would not be 16 at the time of his release) and pre-release child in need plans and multi-agency public protection arrangements (MAPPA) plans would be made so Mr S could return to his family home;
- That if neither a) nor b) were achievable, Mr S would be accommodated by the Council in a foster placement outside the Council’s area but near enough for Mr S to have regular contact with his family. This would allow Mr S’s family time to sort out housing.
Before the automatic release date
- The Council discussed accommodation with Mr S’s family. His family accepted they needed to move from where they lived to another Council’s area so that Mr S could be reunited with them. I have seen evidence that I cannot share to suggest Mr S’s parents did not want Mr S to live alone or be fostered away from them on release. The Council could also have considered accommodating the family under Section 17 of the Children Act 1989 at this point.
- A meeting with Mr S on 1 May suggested he understood, and appreciated, this.
- However, as time went on, Mr S seems to have become more unhappy at the prospect of remaining in custody until his family found somewhere else to live. Mr S’s representative say they spoke to a family member in June and felt they would have agreed for him to be accommodated. There is no evidence that they told the Council this. Nevertheless, as the Council had identified accommodating Mr S as an option in April, it should have kept the situation under review as well as considering supporting the family under Section 17. The Council told Mr S’s representative it was looking for a foster placement for Mr S but it never found one that was suitable. This meant Mr S was getting contradictory messages from the Council as to future planning for him.
- Mr S stayed in custody until his normal release date.
- Although Mr S was given an address before he was released, this was changed on the day of release. It was clear that Mr S’s parents were still struggling to find a suitable property out of area even though it had been evident since the Council became involved, nearly five months earlier, that this was essential.
- Mr S lived with his mother in a static caravan, a holiday home, in a holiday village and appears to have had a room in a hotel from his release until 1 November when his family moved to their new home in another Council’s area.
- In the meantime, the Council accepts Mr S did not have an opportunity to begin full time education (post-release) until January 2019. Mr S did not return to education.
What should have happened
- The Council should have considered Mr S’s needs well before his early release date. Timescales need to be long enough for proper planning to take place. This was especially true here as it was in Mr S’s and his family’s interest (the Council also thought this was in Mr S’s best interest) to secure a permanent address outside the Council’s area as quickly as possible so they could be reunited as a family. Mr S should have been able to take advantage of early release.
- Mr S’s representative highlights the Council should have produced a detention placement plan when Mr S was on remand (and became a looked-after child for the duration he was on remand). This would have covered ‘whether the child will need to be accommodated by the designated local authority or by another local authority on release’ or whether any other services under the Children Act 1989 would also be due. If it had done this, the Council would have been aware much earlier as to what was necessary. This supports my contention that planning should have been underway a lot earlier than it was.
- If Mr S’s parents could not find a permanent address, the Council should have either provided them with a temporary address to enable Mr S’s early release or considered accommodating Mr S under Section 20 of the Children Act to enable early release. Even if not at the early release date, the Council should have kept Mr S’s best interests under review to see if it was appropriate to find him a foster placement or to support the family under Section 17. The Council needed to act in Mr S’s best interests given it accepted him as a child in need and Mr S should not have had mixed messages that the Council was looking for a foster placement and/or that his parents would be able to move in time to accommodate him.
- Mr S’s parents were prevented from being able to accommodate him until they had found a property outside of the Council’s area and, for whatever reason, they were delayed in doing that. Although the Council is not responsible for the actions of Mr S’s family, and it helped them to move by providing financial support, it needed to be realistic as to what could be achieved and when. It needed to convey its clear expectations, and deadlines, to Mr S’s family. It also needed to ensure Mr S was safe when he was released and had a property to go to. This should not have been changed at the last minute. Youth Justice Board guidance is clear that a young person should know where they are living by the date of the pre-release meeting (approximately a month before release) and certainly by the final planning meeting two weeks before. This did not happen. According to the UN, children leaving prison need “a smooth transition from the prison to the community, (to) reinforce the gains achieved in prison through treatment and educational programmes”. Having a hugely unsettled period following release would not achieve this aim.
- The Council also needed to identify an appropriate educational offer for Mr S. There is evidence it applied to two other Council areas for short-stay school places. While waiting for them to come back, the Council offered home tuition although I understand this was only for two hours each day. Given Mr S was released at the start of September, the Council could have identified appropriate full-time education for him at an early stage and arranged appropriate transport from wherever he was living. As Mr S had been in full time education in custody, there is no evidence to suggest he would not engage in it on release. There is no evidence for a part-time timetable being suitable. Education would also have provided Mr S with some stability.
- The timescale here, from when the Council involved itself in Mr S’s case, was too short to enable it to properly plan for Mr S’s early release date. As assessments can take up to 45 days to carry out; the Council did not have enough time to do this and then put the identified actions from that assessment in place. This is fault. Although the Council was not responsible for Mr S’s parents moving, timely planning would have highlighted their need to move (or for Mr S, or the whole family, to be accommodated elsewhere) earlier.
- Although Mr S’s family may have wanted to be reunited with Mr S; only they could find a permanent address (albeit with the Council’s help). I can see the Council discussed options with them at the time of Mr S’s early release date. However, as they were not in a permanent address, the Council should have discussed with them the need for a short-term placement for Mr S or identified a placement for them to be together while they looked for a new permanent address. Although accommodation in a foster placement for Mr S was not what the family said it wanted, temporary accommodation would have been for a relatively short amount of time. Alternatively, the Council may have decided to accommodate the family while they found a new home. I cannot say what course of action the Council would have decided upon. However, the Council’s failure to consider Mr S’s needs for accommodation from his early release date is fault.
- The Council failed to ensure Mr S had access to full time education upon release. I am aware that Mr S wanted a college placement although he was still in compulsory education. I have no evidence to show it was explained to Mr S that a college placement would not be possible and he would be expected to return to a school placement given his age. Although some education was offered to him, it was not full time.
- I consider that Mr S’s injustice stems from the lack of time the Council had to plan once it became re-involved in his case.
- This lack of planning was at least partly responsible for the lack of permanent (or even fixed term temporary) accommodation for Mr S on his early release date or his automatic release date. I also consider it wholly responsible for the lack of appropriate full-time education for Mr S from his automatic release date.
- The Council was responsible for having a clear plan in place in time for Mr S’s early release, which it did not. I have already explained that it should have started the planning process much earlier than it did. This failure caused Mr S distress. His human rights were also engaged by this failure. Although the family may have wanted Mr S not to be discharged into care, this did not prevent the Council from considering Mr S’s best interests. Under Section 17 of the Children Act 1989, the Council could have accommodated the family together while they were looking for a house to move into. This would have enabled Mr S to take advantage of early release and would have prevented the disruption Mr S experienced following his automatic release date because of short-term moves.
- Mr S did not benefit from the full-time education he should have had from his automatic release date. Although the Council provided him with some tutor support from November to January; this was not full-time education and not what Mr S wanted.
- For the Council to apologise to Mr S for its lack of timeliness in planning for his release within one month of the date of my decision.
- The Council should tell me how it will ensure it reopens the files of children in custodial settings or considers the circumstances of children who will require support from children’s services, in good time before their early release dates and certainly before their automatic release dates. I note the National Standards for Youth Justice Services (2019) explains that future needs should be considered at the point of sentencing including ‘planning for successful resettlement’ at the earliest point. This process should include a consideration of supporting children and families under the Children Act 1989. The Council should tell me what systems it has in place for meeting those standards within four months of the date of my decision.
- For the Council to make a payment of £500 to acknowledge the distress Mr S had for not having a permanent or fixed-term accommodation offer in place for his early release date. This also includes a remedy to the distress caused to him from the Council’s failure to ensure he had a support plan. The Council should make a further payment of £400 to acknowledge Mr S’s distress at not having a permanent or fixed-term accommodation offer on his automatic release date. Payments should be made within four months of the date of my decision.
- For the Council to make a payment of £400 for its failure to provide Mr S with full time education from his automatic release date until the following January. This payment should also be made within four months of the date of my decision.
- I have found evidence of fault leading to injustice and remedies have been agreed to that injustice.
Investigator's decision on behalf of the Ombudsman