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London Borough Of Barnet (20 001 487)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 26 Feb 2021

The Ombudsman's final decision:

Summary: Mr B complained about the actions the Council took in respect of his complaints about the service he received as a care leaver. We found the Council was at fault and should have considered Mr B’s complaint at stage three of the statutory complaints procedure. But we consider the action taken by the Council including the payment offered (£1500), is sufficient to put matters right.

The complaint

  1. Mr B complains that the London Borough of Barnet (the Council), in respect of his complaints about the leaving care team:
    • delayed excessively in responding to his complaints;
    • unreasonably refused to consider the complaints at stage three of the statutory procedure; and,
    • failed to implement his desired outcomes as agreed by the adjudication officer at stage two of the complaints procedure.
  2. This caused him significant distress and frustration at a difficult time.

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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. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
  2. 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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What I found

Children’s Services complaints procedure

  1. 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. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless he considers that investigation was flawed. However, he may look at whether a council properly considered the findings and recommendations of the independent investigation.

Services for children leaving care

  1. The Children Act 1989 places duties on Councils towards children who were formerly in their care. A former relevant young person is a person aged between 18 and 21 (or 25 if still in full-time education) who was previously in care. The Council should provide the following to a former relevant young person:
    • A Personal Adviser
    • A Pathway Plan, to be kept under regular review
    • Assistance with employment, education and training
    • Assistance with accommodation
    • Help with living costs.

What happened

  1. Mr B is a former relevant young person. He started independent living in June 2017. He was in prison between September 2017 and December 2018. He has mental health needs.
  2. In June 2018 he made a complaint to the Council about the services he had received as a care leaver. The Council responded at stage one of its complaints process in July 2018. Mr B escalated his complaint in August 2018 and the Council said it would respond by September 2018. In January 2019 Mr B chased up the Council. In March 2019 it sent another stage one response.
  3. Mr B requested a stage two investigation again and the Council started the process. However, Mr B was unhappy with the first investigation team and the Council appointed a new investigating officer (IO) in May 2019. They met with Mr B and his advocate at the end of May 2019 and Mr B agreed the statement of complaint in July 2019. The Council delayed in providing IO with the case files meaning this did not take place until mid-September 2019. IO interviewed officers in October and November 2019. IO completed their report on 6 December 2019. The Council responded to the report in February 2020.
  4. Out of 36 heads of complaint, IO upheld 29 and partially upheld two. These complaints included a failure by personal advisers to visit him regularly, to build a trusting reliable relationship, to produce accurate and thorough pathway plans and to review them regularly, to visit him promptly when he went into prison and when he was released. IO also concluded the Council failed to provide an advocate promptly or effectively and then failed to ensure the advocate was present at key visits and meetings. The personal advisers also failed to ensure Mr B had the allowances (for personal items and toiletries) he was entitled to while in prison, failed to resolve rent arrears on Mr B’s accommodation to ensure he retained his accommodation, failed to ensure he received a two-year exemption on council tax payments and failed to consult him on how to use his setting up home allowance.
  5. IO agreed with all the following outcomes Mr B desired: that the Council should:
    • Provide a new personal adviser.
    • Carry out an assessment of needs.
    • Review his pathway plan with his advocate present.
    • Arrange for him to see his case files.
    • Pay his savings and all money still outstanding.
    • Remove allegations on file which Mr B considers are without substance.
    • Provide an apology in writing.
    • Pay his council tax for two years until Dec 2020, subject to an appropriate financial assessment.
    • Carry out a full mental health assessment.
    • Pay for positive activities.
    • Address any issues with his Personal Independence Payment claim.
    • Pay compensation for injustice caused by the Council’s failings, in accordance with our guidance.
    • Engage with his advocate
  6. IO did not agree that the Council should compensate Mr B’s advocate. IO also made eight recommendations for improvements to the Council’s leaving care services.
  7. The Council agreed with the IO’s finding, conclusions and recommendations. In its adjudication letter the Council advised Mr B that he had 20 working days to request a review Panel if he was dissatisfied with the stage two investigation and to state the reasons why he was dissatisfied. Mr B’s advocate asked for two extensions to the deadline due to Mr B’s mental state. The Council granted an extension until 17 March 2020.
  8. The Council says between March and June 2020 it was in discussion with Mr B’s advocate about implementation of the recommendations. It said it was clear by this point that Mr B had read, understood and accepted the findings and recommendations of the stage two investigation.
  9. On 11 June 2020 Mr B requested that the complaint go to stage three as the Council had still not implemented the agreed actions from the stage two investigation.
  10. On 12 June 2020 the Council wrote a letter of apology to Mr B. It offered him £1200 compensation for the unsatisfactory provision of services and £300 for his time and trouble.
  11. The Council refused to take the complaint to stage three of the process on the grounds that Mr B was out of time to make this request. Mr B said he had asked for the complaint to go to stage three in February 2020. The Council disagreed and directed him to our office. Mr B’s advocate and another representative also requested the complaint go to stage three saying there were valid reasons why Mr B had taken some time to respond to the complaint and some of the agreed actions were still outstanding. The Council maintained its decision not to proceed to stage three.
  12. Mr B complained to us in July 2020. He was unhappy with the level of compensation, said that many of the agreed actions were still outstanding and that his friend should also be compensated.
  13. In response to my enquiries the Council has explained the actions it has taken in respect of implementing the agreed outcomes:
  14. It had allocated an interim PA with Mr B’s agreement until it allocated an experienced and permanent PA in November 2019. Mr B did not meet her until March 2020 (at his request) and agreed that she would meet Mr B at a location of his choosing. The Council says Mr B declined many of these meetings and in September 2020 said he would prefer email contact.
  15. It had completed an assessment of Mr B’s needs in October 2019.
  16. The Council has made regular efforts between January and October 2020 to arrange a review of Mr B’s pathway plan. But it has not been successful as Mr B has not felt able to meet during this period.
  17. The Council has recently sent most of the remaining files to Mr B. The final ones will be sent to him following any third-party redactions.
  18. In respect of the savings, the Council paid him £70 in March 2020 and another payment of £70 in May 2020. It also paid, as a goodwill gesture, in July 2020 a further £1000 setting up home allowance.
  19. The Council added the apology letter to Mr B’s files to address the issue of the unsubstantiated allegations on his file.
  20. It sent the apology letter in June 2020 offering £1500 compensation.
  21. In respect of the council tax it explained that the two year exemption for care leavers came into force on 1 April 2018. It applied to the first two years of independent living. If the care leaver had started living independently prior to April 2018 the exemption would apply for the remainder of the two years. Mr B started independent living in June 2017 so he was entitled to the exemption from 1 April 2018 until June 2019. The Council sent a letter to care leavers explaining this in September 2018. The Council said a payment was made to Mr B’s account on 26 April 2019 and his council tax was paid up to 31 March 2020.
  22. The Council says Mr B may be entitled to a different exemption due to his mental health needs but has so far not provided the evidence for the Council to decide this.
  23. The Council made referrals to the mental health team in September, November and December 2019. In July 2020 the mental health service said Mr B did not want any information shared with the leaving care team. The Council has no further information regarding this issue.
  24. It paid for a gym membership for Mr B. It looked into the possibility of providing a mental health dog or an electric scooter, but there were no schemes for the former and the latter is illegal in the UK. It suggested a bike as an alternative, but Mr B has not responded to this.

Analysis

Complaint delay

  1. There was significant delay in completing the complaints process; it started in June 2018 and completed in February 2020. I accept that some of this was due to the time Mr B took to respond to communication, but the Council was responsible for a large part of the delay. This was fault which caused Mr B significant frustration and time and trouble.

Refusal to progress to stage three

  1. I understand Mr B took some time to respond to the stage two investigation following the Council’s adjudication letter in February 2020. However, he made clear to the Council on 11 June 2020 that he was unhappy and wanted to progress to stage three. At this point he had not received an apology letter or any indication of how much money the Council was to offer him. The Council sent him an apology letter the next day with an offer of a financial payment, but he still indicated he was dissatisfied with the outcome. Given that the Council had taken four months to send the apology letter and tell Mr B how much the financial payment would be, it is arguable that the 20 working days did not start until it sent the letter. I consider the Council should have allowed Mr B to proceed to stage three and the failure to do so was fault.

Failed to implement Mr B’s desired outcomes

  1. Apart from the delay in sending the apology letter and confirming the financial payment, I consider the Council has made reasonable attempts to implement the agreed actions. However, several points remain outstanding: the level of the financial offer, payment to his friend for her support in dealing with the complaint, and the council tax exemption. I will consider these in turn below.

Council tax

  1. I understand the exemption scheme runs for two years from the date a care leaver started independent living (even if this falls before April 2018 when the scheme started). The Council says Mr B started independent living in June 2017 so the council tax exemption for him ran from April 2018 to June 2019. I cannot find fault with this approach which the Council explained in its letter to care leavers in September 2018. Mr B is not entitled to the exemption beyond June 2019.
  2. The Council has confirmed it paid Mr B’s council tax from 1 April 2018 until 25 June 2019 and an additional payment (as a gesture of goodwill) up to 31 March 2020. It has also offered continuing support to Mr B as a care leaver: it has offered (with his permission) to explore other council tax exemptions and the opportunity to talk to him about this to help him understand his entitlements.
  3. I cannot find fault with these actions.

Payment to friend

  1. Mr B says his friend who acted as an advocate for him through this process should receive some money for her efforts. IO concluded this was not appropriate and this was upheld by the Council. The Council has offered £300 for Mr B’s time and trouble in pursuing the complaint and I consider that is sufficient to recognise the time and trouble arising from the delayed complaints process.

Financial payment

  1. As I explained above, I consider £300 for Mr B’s time and trouble is appropriate in respect pf pursuing the complaint.
  2. The Council has also offered £1200 in recognition of the unsatisfactory provision of services. Looking at our Guidance on Remedies I consider this is a reasonable amount in accordance with our guidelines for payments for distress and risk of harm: Mr B experienced distress and possible risk of harm due to a lack of a competent and regular PA while he was in prison and when he was released. This was for a period from the end of November 2017 until the early part of 2018 following his release. The payment is above the usual range for both distress (£100 to £300) and risk of harm (£500), recognising both the length of time Mr B was affected by the poor service and the exacerbation of his mental health.

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Final decision

  1. I consider this is a proportionate way of putting right the injustice caused to Mr B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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