Decision : Not upheld
Decision date : 01 Jun 2021
The Ombudsman's final decision:
Summary: Ms J has made a complaint about the Council’s children services team. Mainly, she says there was a lack of support by the Council before her grandchildren became looked after children. Among other issues, Ms J says the Council has not promoted regular contact between her and her grandchildren. The Ombudsman has not found any evidence of fault by the Council.
- The complainant, who I refer to as Ms J, is making a complaint about the Council’s children services team. Specifically, Ms J says:
- her four grandchildren (Child A, B, C and D) have been wrongly removed from her care by the Council without their permission;
- her appeal documents presented to the Court of Appeal after the first legal proceedings went missing internally;
- there was a lack of support from the Council since early 2017;
- a social worker physically assaulted Child A;
- the Council is not adhering to the contact plan as ordered by the Family Court or promoting communication between her and the children;
- the Council has not given letters and drawings sent by the grandchildren which were intended for her;
- the Council is not promoting her grandchildren’s cultural links to their nation of birth or language and;
- The Council has not provided the children’s medical records to her as repeatedly requested.
- Ms J says the Council’s conduct has been a source of distress to her and her family. As a desired outcome, she wants to have contact with her grandchildren and for the Council to be held accountable for the alleged faults.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. 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).
- We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the courts or judiciary. (Local Government Act 1974, sections 25 and 34(1), as amended).
- We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended).
- We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended).
- The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916).
- 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended).
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended).
How I considered this complaint
- I have read Ms J’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation. Both Ms J and the Council received an opportunity to comment on a draft of my decision before I reached a final determination.
What I found
Background and legislative framework
- 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 Children Act 1989. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours.
- A local authority has a duty under section 22 of Children Act 1989 to safeguard and promote a LAC’s welfare. To meet this duty, local authorities must create a care plan for each child it is looking after. The care plan must include a record of the following information:
- the long-term plan for the child’s upbringing and;
- the arrangements made by the local authority to meet the child’s needs in relation to their health, education, emotional and behavioural development, family and social relationships and culture.
Chronology of events
- In mid-2014, Ms J brought her four grandchildren over to live in the UK from abroad following their father passing away. Ms J says the mother of the children was not in a position to care for the children.
- In early 2017, Child A began stealing and showed other poor behaviours and the Council became involved. Ms J says the social worker appointed to her did not help and instead told the children the Council would take them away from her.
- In June 2018, Ms J says the social worker in the case physically abused one of the children by throwing the child on a chair when visiting him at school. Further, she says that although there was no CCTV evidence, the other grandchildren witnessed the incident. Ms J says the police became involved, the social worker was suspended, and the Council closed the case.
- In June 2018, the oldest two children were placed in foster care with the younger two children placed in a different foster placement.
- In November 2018, a final court hearing took place to determine the status of the children. The court ruled that the children should not be placed for adoption and that they should have contact with their relatives, including Ms J. The complainant says the Council drew up a plan for contact. Ms J says the judge told her she could submit an appeal in relation to the two younger children. However, she says appeal papers went missing shortly after submitting these.
- It was later determined that Ms J should be permitted six contact visits each year with her four grandchildren. This was agreed between the Council and Ms J.
- In December 2018, the Council arranged a contact visit with Ms J as ordered by the court. However, Child A, Child B and Child C did not wish to see Ms J and so did not attend the contact. Child D did attend the visit. It was reported by the social worker present that Ms J presented challenging behaviour.
- In February 2019, the Council arranged a further contact visit with Ms J. However, Child A, Child B and Child C did not wish to see Ms J and so did not attend the contact. Child D did attend the visit.
- In May 2019, the Council arranged a further contact visit with Ms J. However, Child A, Child B did not wish to see Ms J and so did not attend the contact. Both Child C and Child D did attend the visit.
- In August 2019, the Council arranged a further contact visit with Ms J. However, Child A and Child C did not wish to see Ms J and so did not attend the contact. Child B and Child D did attend the contact. It was again reported by the social worker present that Ms J presented challenging behaviour. This is because the Council said Ms J was referring to Child D as dirty and hungry. Following the contact, Child B said she did not wish to see Ms J again.
- In November 2019, the Council arranged a further contact visit with Ms J. However, Child A and Child B did not wish to see Ms J and so did not attend the contact. Further, Child D was unwell and so did not attend. Child C did attend.
- In January 2020, the Council arranged a further contact visit with Ms J. However, Child A and Child B did not wish to see Ms J and so did not attend the contact. Both Child C and Child D did attend the visit.
- In February 2020, the Council arranged a further contact visit with Ms J. However, Child A and Child B did not wish to see Ms J and so did not attend the contact. Further, Child D was unwell and so did not attend. Child C did attend.
- In March 2020, the Council held a contact visit between Child D and Ms J. Later, Ms J says she received a Council letter to advise her that due to the COVID-19 pandemic, contact would be by video call. However, she says she was later told this was not appropriate in her case.
- In June 2020, as all face-to-face contact had been put on hold, pictures were collected from Child C and Child D and given to Ms J. However, Child A and Child B were not happy for pictures to be provided to Ms J. It was recorded that this proposition was a source of distress for Child A and Child B.
- In August 2020, Ms J says she asked the Council about resuming contact in contact centres. However, she said she was told by the Council that contact centres were not operating during the pandemic. She says she then contacted one of the contact centres which confirmed it was operating.
- In April 2021, Ms J and the children’s birth mother had a contact visit with Child C and Child D. It is still maintained by Child A and Child B that they do not wish to have any form of contact with Ms J under any circumstances. Ms J complained that there was not an interpreter present, meaning the birth mother could not communicate with the children.
Removal of children from care
- By law, I cannot investigate a complaint which has been subject to legal proceedings in court. Further, I cannot investigate any matter which is materially connected to those proceedings. I recognise that Ms J believes the Council’s decision to remove her grandchildren from her care was without merit. However, this matter was subject to proceedings in the Family Court which concluded in November 2018 and resulted in Ms J’s grandchildren being removed from her care. For the reasons given, I have no jurisdiction to investigate this part of the complaint and the restrictions I describe at paragraphs 7 and 8 therefore apply.
Missing appeal documents
- Following the court hearing, Ms J says she submitted appeal documents to the Court of Appeal by way of recorded delivery. She says the documents were signed for, though afterwards they went missing and her attempts to locate them were not dealt with. Though I appreciate why Ms J has raised this matter as a point of complaint, the Court of Appeal or any part of the judiciary is not a body I have jurisdiction to investigate. Moreover, this is not an administrative function of the Council. The restrictions I describe at paragraphs 5 and 6 therefore apply.
Lack of social worker support
- By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons. In early 2017, the Council appointed a social worker to Ms J and her grandchildren to provide help to the family. However, Ms J says the social worker did not provide adequate support. Further, she says the social worker made attempts to intimidate the family with threats the children would be taken into care. On the face of it, Ms J’s complaint is late and I must therefore decide whether there are good reasons to exercise discretion in this respect.
- I have seen no evidence that Ms J submitted a complaint to the Council about this issue when it first arose, let alone consistently raise it as a point of dispute. Moreover, I consider there would be practical challenges in investigating issues and collecting evidence for matters which took place over four years ago. For these reasons, I see no good reason to exercise discretion and investigate this part of the complaint. The restriction I describe at paragraph 9 therefore applies.
- In addition, Ms J has referenced an incident with a social worker which happened in June 2018. She says the social worker physically assaulted one of the children. Equally, this part of the complaint is late and for the reasons stated in paragraph 33, I do not propose to exercise discretion and investigate this matter.
- It is claimed by Ms J the Council has not arranged six contact visits per year as agreed subsequent to the legal proceedings. The Council told me that it has arranged six visits annually. However, it said the children have at times said they did not wish to have contact with Ms J. I have reviewed the case notes for the children which includes extensive notes for each supervised contact with Ms J. I am satisfied the Council has arranged six annual contacts for Ms J. However, these contacts must be balanced with the wishes of the children who, at times, have not wanted to have any contact with Ms J. I see no evidence of fault that the Council has not maintained the contact plan as agreed between the parties.
- In response to the pandemic, the Council implemented video calls as an alternative to face-to-face contact. However, Ms J in unhappy she was told this would be inappropriate in her case due to concerns around face-to-face contact and the need for an interpreter. This is because the Council said Ms J presented challenging behaviour during contacts which caused the children distress. The Council’s records state that senior staff felt it would be unrealistic and unfair to expect carers or the interpreter to step in and stop contact if needed. The Council said it would provide Ms J letters and cards from the children as an alternative.
- I have seen evidence that Ms J has presented disruptive and challenging behaviour during her contact visits. Moreover, I have seen reports this behaviour has impacted adversely on the children. In my view, the Council’s decision to not allow video contact was well measured and taken to promote the best interests of the children. I have not determined any fault by the Council in this respect.
- Separately, Ms J has complained that her most recent contact visit with her grandchildren was impeded by a lack of interpreter. She says this meant Child C and Child D could not communicate with their birth mother. As I understand, Ms J speaks fluent English and has before told the Council she does not require an interpreter. It would seem therefore that Ms J’s complaint is on behalf of the children’s birth mother. I do not have consent from the birth mother to investigate a complaint on her behalf. Further, she would need to first complain to the Council through its formal complaints process. I therefore cannot investigate this matter.
Letters and drawings
- The Council accept there was an expressed agreement it would provide Ms J with letters, cards and drawings from the children. It said these were not provided as agreed and there was a delay in sending these to Ms J. The Council said this was because the children initially expressed they did not wish to send any pictures or drawings to Ms J. However, Child C and Child D later changed their minds. The Council also said the matter was complicated due to Covid-19 restrictions which meant attending the office to post items to Ms J was a challenge.
- I have seen evidence in the case notes that the children did not wish to provide Ms J with pictures and drawings in the first instance. The Council must act in accordance with the wishes of the children to promote their best interests. Moreover, the Council must respect restrictions put in place by reason on the pandemic. For these reasons, the Council was not at fault for the delay in providing Ms J pictures and drawings as agreed. However, it has said it will try to provide Ms J with these items quicker in the future.
Promoting cultural links
- The Council must make arrangements in order to meet the needs of each of the children it its care. This includes identifying cultural and linguistic needs so to make arrangements to facilitate these. As each of the children in this case were raised in a foreign speaking household, the Council has sought to promote their understanding of their culture and identity. However, Ms J has expressed concern the children are not speaking their mother tongue in the contact visits with her. She has complained the Council is not promoting the children’s cultural heritage.
- I have seen evidence in the care records the children have received educational lessons in their national language. Further, the Council has confirmed that Child C and Child D’s foster family speak their mother tongue. It also said a cookbook with national dishes has been produced by the social worker and given to all carers to explore different types of food with the children. In addition, the Council has sought the input from Ms J for any additional areas she feels would be helpful. In my view, the Council is promoting the children’s cultural links and heritage and I have not seen any evidence of fault in this respect.
Medical records request
- The request for sensitive personal information falls within the remit of data protection laws. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may investigate if we feel there are good reasons. In my view, Ms J’s complaint in this respect is strictly limited to her not receiving sensitive information she feels she is entitled to as a matter of law. The ICO is best placed to consider whether the Council is not meeting its obligations in this respect. I see no reason to depart from our normal practice and consider it would be reasonable for Ms J to take her complaint to the ICO.
- There are a number of parts to this complaint which I do not have jurisdiction to investigate. As to the areas I can investigate, I have not found any evidence of fault by the Council which requires a remedy. This is because the Council is maintaining contact between the children and Ms J and is promoting the children’s cultural links.
Investigator's decision on behalf of the Ombudsman