Decision : Upheld
Decision date : 22 Jun 2021
The Ombudsman's final decision:
Summary: Mr D complains about the quality of care whilst he was a looked after child, in particular that he did not receive a suitable education and arrangements for contact with his family were inadequate. The Council has accepted there was fault and has apologised. The fault caused Mr D to lose the opportunity to achieve GCSEs and has damaged his relationships with his family. The Council has agreed to make a payment to remedy those injustices.
- Mr D complains about the quality of care whilst he was a looked after child. In particular he complains that the Council:
- Did not properly investigate allegations he made in April 2019 about inappropriate and sexually explicit behaviour by other residents.
- Did not properly investigate reports he made of unprofessional behaviour by staff at the educational establishment and did not give due weight and consideration to his requests to move from this provision.
- Did not make adequate educational arrangements for him that met his educational needs.
- Failed to make adequate arrangements for him to have contact with his family from September 2016 to March 2018
- Failed to recognise that the arrangements were not in his best interests.
- Failed to acknowledge the behaviour of his foster carers was inappropriate.
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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 spoke to Mr D about his complaint and considered the Council’s response to our enquiries.
- Achieving for Children (AfC) is commissioned by the Council to provide certain children's services. The Council retains legal responsibility for provision of these services. As AfC is acting on behalf of the Council I have referred to its decisions and actions as being those of the Council throughout this statement.
- Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Looked after children and young people
- Sometimes parents cannot look after their children. These children and young people may need the Council to accommodate them under a care order granted by the Court, or by a voluntary agreement under section 20 of the Children Act 1989.
- The local authority has a duty under section 22 of Children Act 1989:
- to safeguard and promote the child’s welfare (including the child’s educational achievement for which the local authority must appoint a person whose responsibility it is to discharge this duty)
- 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.
Allegations against staff
- Under section 47 of the Children Act 1989, if a local authority has reason to suspect a child who lives within the area is at risk or likely to suffer significant harm, it has a duty to make enquiries to decide whether to take action to safeguard the child.
- Councils must appoint a Local Authority Designated Officer (LADO) to oversee and manage the investigations of allegations against people working with children.
- If an allegation is made to the LADO, the LADO must consider whether there is cause to suspect that a child is suffering, or is likely to suffer, significant harm. If so, the LADO should consider immediate safeguarding action and make a referral to local authority children’s social care so that they can initiate a section 47 enquiry. The LADO should then consider whether further details are needed to establish whether the allegation is false or unfounded.
Statutory children’s complaint procedure
- 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, they can ask for a stage 3 review. Early referral to the Ombudsman after stage 2 is possible in a limited number of cases if certain criteria are met.
- 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, we may look at whether a council properly considered the findings and recommendations of the independent investigation.
- Mr D went into foster care in 2016 aged 14 under a section 20 agreement. A few weeks later he was placed in a residential unit in another council’s area (Placement 1). This unit had educational provision attached and a PEP was completed. There is no record of approval by a senior manager to a change in Mr D’s placement that might affect his education or of any consideration as to whether Mr D had special educational needs that should be assessed.
- The LAC review in October 2016 recorded that Mr D could do GCSEs at Placement 1, but in fact this was not an option as it only provided functional skills courses. An application was made to a mainstream school which was refused and not pursued by the Council.
- The Court granted the Council an interim care order in November 2016. At the LAC review in December 2016, it was agreed a contact plan should be developed for Mr D to have regular contact with his mother and sister.
- The Court granted the Council a care order in March 2017. It was agreed that Mr D should have fortnightly, unsupervised, direct contact with his mother. The records do not show any direct contact between Mr D and his mother from March 2017 to August 2017. This seems to have been because the police were investigating allegations against Mr D’s father, but it is unclear if Mr D was told this. There is no evidence of a contact plan being drawn up.
- In August 2017 Mr D reported inappropriate behaviour by staff at Placement 1 and a referral was made to the LADO. A teacher was suspended, there was a restorative meeting and the LADO decided to take no further action.
- At the September 2017 LAC review, when Mr D was starting year 11, Mr D asked to leave Placement 1 and return to his mother’s in the Council’s area. The review found the relationship with the school had deteriorated but no planning was done for a different educational placement.
- Mr D again asked to move back to the Council’s area in November 2017. There was some discussion about whether Mr D could do different courses or whether a mainstream school could be identified. It was considered that input from mental health services was needed. There is no evidence any further action was taken as it was felt Mr D should complete the functional skills tests in April 2018.
- By December 2017 Mr D had not had any direct contact with his mother for eight months. The social worker discussed Mr D’s family circumstances with him but there is no record of contact arrangements being made.
- The LAC review in March 2018 decided Mr D should return to London in June 2018. A placement was sought but delays meant Mr D did not move to Placement 2 until August 2018. There is no record of any discussions with Mr D about the delay or arrangements for this move. A contact plan with Mr D’s mother was proposed but there is no record it was implemented. Concerns were raised about the quality of education at Placement 1 and the deterioration in the relationship between Mr D and the headteacher but no action was taken.
- Mr D complained about other residents’ behaviour towards him in the first few months of 2019. In April 2019 he emailed the social worker and asked to move. There was a further incident and Placement 2 held a restorative meeting on 13 May 2019. At the next LAC review, it was agreed Mr D should move to a trainee flat. Mr D was by now 17 years old. He moved to the flat in July 2019.
Mr D’s complaint
- Mr D complained to the Council in September 2019. By then he had moved out of the flat and back in with his mother. Following his complaint, Mr D met with the Council on 23 September 2019. This led to a referral to the LADO about staff at Placement 1.
- Mr D became suicidal and was admitted to hospital in October 2019 after self-harming. His final LAC review was on 29 November 2019 and it was agreed Mr D should live with his mother.
- Mr D met the Council again in January 2020 to discuss his complaint. This led to a further referral to two LADOs in relation to staff at Placement 2 and his 2016 foster carers. The police investigated the allegations.
- The Council responded to Mr D’s complaint on 27 April 2020 after awaiting the completion of the police investigation. Mr D was dissatisfied with the response and asked to escalate his complaint to stage 2.
Investigating officer’s findings
- The independent investigating officer was appointed in May 2020 and issued his report on 31 July 2020. The report found:
- The Council had responded to Mr D’s allegations in April 2019 about inappropriate and sexually explicit behaviour by other residents at Placement 2 and had ensured the provider had responded under their anti-bullying policy, but it had not confirmed the concerns in writing nor ensured the matter was resolved.
- The Council should have had more active management oversight of, and recorded on the case file, Mr D’s reports of unprofessional behaviour by members of staff at the educational establishment attached to Placement 1.
- The Council had not taken sufficient account of Mr D’s educational needs and had not given sufficient consideration and support to matching Mr D’s educational needs:
- Mr D had the academic ability to achieve at GCSE level but the Council failed to consider in October 2016 whether Placement 1 was suitable for Mr D’s educational potential.
- By March 2017 the opportunity to re-engage Mr D with the year 10 GCSE syllabus had probably been lost, but no consideration was given to the following academic year, resulting in Mr D effectively being denied the opportunity to achieve GCSEs.
- The disruption to his education that the move to Placement 1 entailed was not adequately scrutinised.
- Mr D’s complex mental health needs and his possible high functioning autism were not identified as requiring assessment for special educational needs.
- No action was taken to consider off-site courses following concerns about the quality of education at Placement 1 and the poor relationship with the head teacher.
- Mr D’s ability to undertake an apprenticeship was undermined by the delay in moving him back to London and lack of arrangements.
- The Council did not make adequate arrangements for Mr D to have contact with his family at a reasonable frequency in accord with his needs and wishes. Mr D had no direct contact with his mother for about eight months in 2017, no contact arrangements were detailed in Mr D’s plan, the suspension of direct contact was not reported to Mr D’s independent reviewing officer and the agreement in court for Mr D to have fortnightly unsupervised contact was “treated lightly”.
- There was no overview of all the issues and the impact this was having on Mr D’s well-being whilst at Placement 1, but the Council had sought ways to alleviate Mr D’s distress by considering a move.
- A lack of evidence meant it was not possible to make a finding about how the Council had considered Mr D’s concerns about the foster carers’ behaviour towards him in September 2016.
The Council’s response
- The Council accepted the findings of the independent investigation in August 2020. It apologised to Mr D and offered him £3,000 to recognise the loss of appropriate education, £450 for the distress caused and £200 for the time and trouble he had been put to in complaining.
- The Council also offered to provide financial support to enable Mr D to undertake “one specific course of study that will enable him to gain a qualification that will improve his employability”.
- Mr D decided not to seek a stage 3 review, instead he asked the Council to make an early referral to the Ombudsman. Mr D told me:
- The long period of no contact with his family had caused severe damage to the relationship. He had had to re-start the relationships, which had been very difficult with a lot of arguments.
- He had felt like he had been in prison and the situation had adversely affected his and his mother’s mental health. £450 as a remedy for this distress was completely insufficient. Although he was now receiving adult mental health support, this had taken eight months to obtain after he moved back to London.
- He now had no qualifications and was reluctant to spend years catching up when this should not have been necessary. The course the Council had offered to fund was not suitable as he would have needed A levels to access it.
- If a council has investigated something under the children's social care complaints procedure, the Ombudsman would not re-investigate the complaint unless we consider the independent investigation was flawed. I have therefore firstly considered whether there was any fault in the way the Council carried out the stage 2 investigation.
- The Council appointed an investigator who had had no previous involvement with the matter. The independent investigator agreed a statement of complaint with Mr D. The investigation took account of evidence from a range of sources and addressed each of the complaints in detail. The report shows the investigator weighed the evidence and drew objective conclusions from it. The report is comprehensive, clear and makes relevant recommendations. The investigation was overseen by an independent person who was content with the conclusions. Having considered all the information available to me, I find the investigation was carried out in line with the guidance.
- My role therefore is not to re-investigate the whole matter, but to look at whether the Council properly considered the findings and recommendations of the independent investigation. I have also considered whether there was any fault or injustice that was not identified by the investigating officer or remedied by the Council.
- The Council has accepted there was fault and has apologised to Mr D. In particular, it failed to ensure Mr D received a suitable education from September 2016 to July 2018 (about 17 school months). As a result, he lost the opportunity to achieve GCSEs he was capable of. This is a significant injustice to Mr D, causing possible long term disadvantage.
- When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance says remedies for distress caused by fault are usually up to £300 but can be up to £1,000 if the injustice is severe or ongoing.
- Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. In my draft decision I considered the Council should pay Mr D £400 for each month of suitable education he lost. In reaching this view I took into account that Mr D was receiving some functional skills training but that the period affected was a significant one in his school career as it could have led to qualifications and he possibly had un-assessed special educational needs. I also considered that it may not be possible for Mr D to have additional provision now to remedy some or all of the loss.
- In response, Mr D set out the impact the loss of suitable education has had on him, saying he had “lost the yearning for an education”, been left with minimal opportunities to catch up due to a lack of qualifications, and was unable to use Placement 1 as a reference while seeking employment. He also provided more detail of the functional skills training he experienced at Placement 1 which he considered to be inadequate.
- I have carefully considered Mr D’s comments and as a result, my view on the injustice caused and the appropriate remedy changed. I now consider that the functional skills training should be discounted, as it was not a useful or suitable education for him as he was capable of GCSEs. This means in effect he received no education for 17 months in a significant period in his school career. Our guidance indicates that in the absence of suitable education, the remedy payment should be at the maximum end. I therefore consider the Council should pay him £600 per month (£10,200 in total).
- The Council has also accepted it failed to ensure adequate contact between Mr D and his mother. Although I cannot say what Mr D’s relationship with his family would have been like if contact had been maintained, I consider it would have been adversely affected by a lack of contact and that this has contributed to the difficulties now. This is a significant injustice, but the Council has offered no remedy to Mr D to acknowledge that injustice.
- 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. So, although I found fault with the actions of AfC, I have made recommendations to the Council.
- Within a month of my final decision, the Council has agreed to pay Mr D a total of £11,350, comprising:
- £10,200 to acknowledge the loss of 17 months of suitable education.
- £500 to acknowledge the impact on the relationship with his family.
- £450 to acknowledge the distress caused.
- £200 to acknowledge the time and trouble he has been put to in complaining.
- There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.
Investigator's decision on behalf of the Ombudsman