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Manchester City Council (20 008 516)

Category : Children's care services > Looked after children

Decision : Upheld

Decision date : 17 Nov 2021

The Ombudsman's final decision:

Summary: The complainant alleged that the Council delayed in taking her into its care when she was homeless and at risk. The Ombudsman finds fault with the Council’s actions, causing the complainant an injustice. The Council has agreed to provide the recommended remedy. Therefore, we have completed our investigation and are closing the complaint.

The complaint

  1. The complainant, who I refer to as Ms X, complained that the Council failed, in April 2019, to accommodate her under section 20 (s20) of the Children Act 1989, whereby she would have been looked after by the Council (a looked after child) and received accommodation and support.
  2. Ms X complained also that there were other opportunities, after April 2019, when the Council should have accommodated her under s20, failing in particular to properly investigate her circumstances, or taking into account historical safeguarding concerns.
  3. The Council accommodated Ms X under s20 in February 2020. However, by this stage, she was nearly eighteen and the Council says that she is not entitled to leaving care services because she has not been accommodated long enough
  4. Ms X says that, as a result of not being accommodated sooner, she did not receive statutory support as a looked after child, at a difficult stage in her life, and she is not now regarded as a care leaver, entitled to statutory leaving care services.
  5. Ms X has been living with uncertainty about her accommodation, and her future, and at one point was sleeping rough, which resulted in her being attacked and ending up in hospital. Ms X has also been caused avoidable distress.

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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. When investigating complaints, if there is a conflict of evidence, the Ombudsman may make findings based on the balance of probabilities. This means that during

an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.

  1. Our approach is that we treat the actions of organisations, who are delivering councils’ administrative functions on the council’s behalf, as if they were those of the council.
  2. We have discretion under 26(D) to investigate matters coming to our attention during an investigation, if we consider that a member of the public, who has not complained, may have suffered an injustice as a result.
  3. The Ombudsman cannot investigate whether social workers are meeting their professional standards of conduct. Complaints of this nature should be referred to the social workers’ professional body, Social Work England.
  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 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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How I considered this complaint

  1. With an advocate’s help, Ms X complained to the Council about what had happened. The Council has investigated this complaint under the three stage Children Act 1989 statutory complaints procedures. There was an independent person to oversee the stage two investigation, which was carried out by a Council’s complaint officer.
  2. Ms X had wanted her complaint to be considered at the final stage of the complaints process, the Complaints Review Panel. But we accepted the complaint without Ms X going through this stage because of the difficulties caused by Covid 19 lockdown.
  3. The Council has not upheld the main complaint about whether Ms X should have been accommodated under s20 sooner and has either not made findings on the other complaints or has not upheld them.
  4. I made enquiries of the Council and obtained Ms X’s social care records, which the Council has asked not to be disclosed to her. Ms X can make her own subject access request to the Council to see her social care records.
  5. The Council had a contract with a housing referral unit, which I refer to as resource C. Resource C’s website says that it supports homeless 16-25 year olds and the Council has a working protocol with it. My view is that resource C is working on behalf of the Council and therefore is an organisation which we could investigate.
  6. I issued two draft decision statements finding fault and injustice. I have taken into account the Council and Ms X’s additional comments before reaching my final decision.
  7. I have spoken to Ms X on the telephone.

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What I found

Legal and administrative arrangements

  1. Section 17 of the Children Act 1989 says it shall be the general duty of every local authority (council) to safeguard and promote the welfare of children within its area who are in need and, as far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. A child is in need if:
    • he is unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support; or
    • his health or development is likely to be significantly impaired unless the council provides support; or
    • he is disabled.
  2. Where a council assesses a child is in need it should arrange for a social worker to develop a child in need plan setting out the support the child needs. It will monitor the delivery of that support and keep the plan under review through regular child in need meetings.

Councils’ duties to support, protect and accommodate children in need and at risk

  1. Under section 47 of the Children Act 1989, headed Local authority’s duty to investigate, it states that if a local authority has reasonable cause to suspect a child is suffering, or is likely to suffer, significant harm, it shall make or cause to be made such enquiries they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare,
  2. The statutory guidance-Working Together to Safeguard Children 2018-says that the purpose of an assessment is to decide whether a child is a child in need or is suffering or is likely to suffer significant harm.
  3. The guidance at paragraph 45 makes the following points:

“Whatever legislation the child is assessed under, the purpose of the assessment is always;

  • To gather important relevant information about a child and family;
  • To analyse their need and/or the nature of any risk and harm being suffered by the child
  • To decide whether the child is a child in need (s17) or is suffering significant harm (s47)
  • To provide support to address these needs to improve the child’s outcome and welfare and where necessary to make them safe.
  • A local protocol should set out how cases will be managed when a child is referred into the LA children’s social care.
  • Assessments should be a dynamic process which analyse and responds to the level of risk or risk faced by the child from within or outside the family.”
  1. Under s20 of the Children Act 1989, councils shall provide accommodation for any child in need in their area who appears to them to need accommodation as a result of:
    • there being no person who has parental responsibility for him;
    • his being lost or abandoned; or
    • the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
  2. Under s20(3) every council shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the council considers is likely to be seriously prejudiced if they do not provide him with accommodation.
  3. A council may not provide accommodation if the person who has parental responsibility objects. But children aged sixteen or over can consent to being accommodated by the council without their parents’ consent.
  4. Once the council accommodates a child, that child is considered a ‘looked after child’ (LAC) and councils are required to promote their welfare. The council will appoint an independent reviewing officer (IRO) to ensure that agreed care plans for the child are adhered to.

Homeless 16 and 17 year olds

  1. In a key case (the Southwark judgement), the court set out the principles which councils should follow when deciding if it has a duty to accommodate a 16 or 17 year olds under s20 of the Children Act 1989. (see the Council’s procedures, which explains these principles in more detail).
  2. Statutory guidance published in April 2010, Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation lays out the duties of housing and children’s services departments to work together to ensure 16 and 17 year-olds are not left on the streets.
  3. The 2010 guidance provides (paragraph 3.1): “where a 16/17 year old seeks help from local authority children services, or is referred to children services by some other person or agency as appearing to be homeless, children services must carry out an assessment of what duties, if any, are owed to them ..where the duty in s20 of the 1989 Act is triggered the local authority are under a duty to accommodate the child.
  4. Paragraphs 3.11 and 3.12, the guidance states: ”local authority duties for accommodating young people under this section are not simply a matter for local policy. The duty is engaged whenever a child in need in the local authority area requires accommodation as a result of one of the factors set out in s20 (1) (a) to (c)…As a result of being accommodated by children services for a continuous period of 24 hours the young person will become looked after…Children services will have a duty to maintain them, including meeting the cost of accommodation”
  5. The 2010 guidance states that councils should ensure they have a sufficient supply of accommodation options for homeless young people. This guidance also states at 3.41:

“Where a young person says they do not wish to be accommodated, a local authority should reach the conclusion that the young person’s wishes are decisive only as part of an overall judgement of their assessed welfare needs and the type and location of accommodation that will meet those needs.”

  1. The government published new guidance in April 2018 to reflect the new duties introduced by the Homelessness Reduction Act 2017. The guidance made clear that s20 of the Children Act 1989 takes precedence, but housing services also have duties to young people who are homeless or threatened by homelessness.
  2. Where a young person seeks help, and it appears that they have nowhere safe to stay that night, children’s services must ensure suitable emergency accommodation, while their needs, including their need for accommodation and support, are further considered.
  3. The 2018 statutory guidance says that there are only two circumstances when a council does not have to provide accommodation under s20 and instead the child may be owed duties under the Housing Act 1996. These are where:
    • the young person is not a child in need;
    • a 16 or 17 year old child in need who, having been properly advised of the implications and has the capacity to reach a decision, has decided that they do not want to be accommodated.
  4. The guidance says that determining whether a young person is in need requires professional judgment by social workers informed by consultation with other professionals who know the family. However, where a young person is excluded from home, it is likely that they will be seen as a child in need.
  5. It is good practice for there to be a joint assessment by children services and housing. Assessments should be completed within 45 days, but sooner if possible.
  6. Where the specific duty is owed under s20 of the Children Act 1989, councils should accommodate a young person under that provision rather than looking to the general duty owed to children in need and their families under s17. Children can be accommodated in a range of possible options: foster care, friends and family carers, supported accommodation or semi-independent accommodation.
  7. Case law states councils cannot “side-step the further obligations which result from [s20] by recording or arguing that they were in fact acting under s17 or some other legislation” (R (M) v LB Hammersmith and Fulham [2009] UKHL 14; [2008] 4 All ER 271 at s47).

Children leaving care

  1. The Children (Leaving Care) Act 2000 sets out councils’ legal duties to provide ongoing support for children leaving care. The type of support offered depends on whether the child would have been considered an eligible child, or a relevant child at the age of 16 or 17 or a former relevant child.
  2. Councils have a responsibility to plan continuing support for all care leavers. This duty continues until they reach age 21. If the council is helping them with education and training, the duty continues until age 25 or to the end of the agreed training (which can take them beyond their 25th birthday).
  3. Councils should appoint each care leaver with a personal advisor, and each care leaver should have a pathway plan. The personal advisor will act as a focal point to ensure the care leaver is provided with the right kind of support. The pathway plan should be based on a thorough assessment of the person’s needs. Plans should include specific actions and deadlines detailing who will take what action and when. They should be reviewed at least every six months by a social worker.

The Council’s procedures

  1. The Council has guidance for social workers and resource C about the Southwark judgement, explaining that homeless 16/17 years old, who present as homeless, should be offered interim accommodation and referred to Children’s Services for an assessment of need. The guidance says that social workers should be aware that Children’s Services, not housing, is the lead agency.
  2. The Council’s guidance refers to the key points of the Southwark judgement. Of particular relevance to this complaint are the questions, which the Council must ask (based on the Southwark judgment):
    • “is the young person a child in need. It must be established whether without services from the LA (Council) his/her welfare will be at risk. The assessment must determine the level of vulnerability, including risk of safeguarding concerns; potential for child sexual exploitation (CSE); health, education, criminal activity etc. Include relevant concerns and previous involvement with Manchester City Council;
    • does he/she appear to Manchester City Council to require accommodation. The assessment must establish whether the young person is in fact homeless. Homelessness is not restricted to street homelessness and includes a series of temporary arrangements commonly called ‘sofa surfing’;
    • is that need the result of there being no-one who has parental responsibility for the child; or the child is lost or abandoned; or the person who has been caring for the child is prevented from providing suitable accommodation or care. It may be necessary to provide temporary accommodation to allow for a plan to be put in place if parents and the young person agree to services being provided to address the situation;
    • is the child’s welfare likely to be seriously prejudiced if the LA (Council) does not provide accommodation. If a parent is prepared to provide accommodation and there is no safeguarding concerns preventing the young person from living at home, alternative accommodation should not be offered;
    • what are the child’s wishes and feelings”.
  3. The Council’s guidance also refers to the statutory guidance, stating:

“Staff conducting an assessment must provide realistic and full information about what the young person can expect as a looked after child and, subsequently, as a care leaver. Children’s Services should also ensure the young person receives accurate information about other assistance available to them if they do not become looked after, and how any entitlement for assistance under Part 7 [of the 1996 Housing Act]. In particular, the possible risk of being seen as intentionally homeless in future, and the implications of this for further assistance with accommodation should be made clear to the young person.”

  1. The Council has a booklet which explains the above and which should be provided to the young person. The booklet says that the young person (who is homeless and is in need) has a choice: that they can either become a looked after child and placed in accommodation or, if they chose not to become looked after, they can be placed in supported accommodation. If the young person decides to become looked after, the booklet explains that they will be entitled to leaving care services if they are in care for 13 weeks.
  2. If the young person chooses supported accommodation, they will have a support worker, (but not a social worker), who can help with budgeting, finding work or education, shopping, cleaning and living successfully in the community. The young person may also be a child in need whereby there would be reviews by a social worker.

The Council’s flowchart for social workers and resource C

  1. For 16/17 years old homeless young people, resource C is expected to check the details of the young person and why they are homeless. It is for resource C to decide whether the young person is safe to stay at the accommodation where they were staying.
  2. If not considered safe, resource C should refer the case to the Council’s Multi Agency Safeguarding Hub (MASH) and a social worker should assess the situation and discuss with the young person the principles of the Southwark judgment. The young person should be given the Council’s booklet.

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What happened

Background events

  1. As a teenager, Ms X was living with her father (her parents were separated). She reported to her then school a series of historical sexual abuse allegations (between the ages of five to thirteen), which she had also reported to the Police and to the Council. It was agreed that Ms X’s father should be told of these allegations.
  2. Ms X also told the Council that she was “hanging around with older males using drugs and alcohol”.
  3. The Council undertook an assessment and it decided that the parents were able to protect Ms X and that she was unlikely to have contact with the perpetrators. The Police stated that there was no evidence of Ms X being involved in a gang culture, although Ms X’s school was concerned about this. The Council recorded that the family were not known to the Council, although Ms X says that this was not the case.
  4. Ms X went to live with at her mother. Ms X says that an older relative lived at home, and he was aggressive to her.
  5. Ms X made allegations of sexual abuse to the Council in 2018 and was advised to present to Homeless Families. It is recorded that Ms X did not want to refer the allegations to the Police. These allegations related to older men who Ms X had met as a teenager. Ms X returned home to live with her mother.

Events of this complaint

  1. In early 2019, Ms X telephoned the Police claiming her mother had pushed her and ‘trashed her room’. She says that she went to a friend’s house. She told the Police she could not return home and she says that the Police advised her to go to her father’s. The Council’s Contact Centre noted that the Police had been called because of Ms X’s allegation against the mother.
  2. Ms X telephoned Children Services. An advocate from a local youth charity, who had been working with Ms X, also telephoned Children Services. The advocate told the Council that she believed Ms X should be accommodated under s20 given her difficult family circumstances and that she was homeless. Ms X says that the advocate also saw that she had two black eyes and bruises. And the advocate told the Council this.
  3. The Council told the advocate that, as Ms X was seventeen years old, Children’s Services could not assist her. Ms X explained to the Council that she had only just turned seventeen. The Council advised that Ms X should approach the Council’s housing referral unit (resource C) for assistance, which she did.
  4. Resource C contacted the Council’s Multi Agency Safeguarding Hub (MASH), raising concerns about Ms X’s predicament, saying she was estranged from her mother and living temporarily with her father. The MASH social worker spoke to Ms X’s mother. The Council concluded that Ms X was safe with her parents and there was no need to carry out a children and family’s assessment or provide accommodation.
  5. Ms X says that she cannot understand how the Council could have reached this view. She says that there were Police reports about her allegations about her family and past history of exploitation. The social worker did not interview her or make detailed enquiries of her situation.
  6. Ms X considers that, had a social worker interviewed her at this time, the Council would have learnt of her vulnerability to exploitation, her risk of significant harm, and that she was estranged from her family. Ms X says that the Council should have placed her in s20 accommodation to safeguard her.
  7. Ms X says that she could not return home because it was unsafe for her to do so. The advocate had also made this clear to the Council.
  8. Resource C found Ms X supported accommodation, which was expensive because there was the rent to pay and the cost of the 24 hour support. The Council says that Ms X was offered the accommodation under a licence. Children’s Services concluded that there was no need for its involvement because Ms X was in appropriate accommodation.
  9. Ms X says that the Council never explained to her the ‘Southwark’ judgment or gave her the Council’s booklet explaining this. If it had, she would have had valuable information about the Council’s duties to her and her options.
  10. The advocate explained to the Council that Ms X could not be expected to pay for the supported accommodation at £400 per week.
  11. Children’s Services were told by the supported accommodation that Ms X would not have to pay except to make a small contribution and that it was permanent accommodation. It is not clear how it was assessed that Ms X could meet the cost of the supported accommodation. Ms X says that the support worker completed the housing benefit form, but it took many months before the housing benefit department assessed her claim and then it explained she would have to make a substantial contribution to the rent because she was working. But, by this stage, Ms X had built up extensive arrears.
  12. The advocate pursued her concerns, saying that Ms X should be assessed by Children’s Services, referring to child protection matters. The Council was told that Ms X had a history of child sexual exploitation, a history of physical and emotional abuse between her parents and had a diagnosis of Post-Traumatic Stress Disorder (PTSD) and anxiety.
  13. The Council remained of the view that there was no need for a children and family assessment and that Ms X was appropriately accommodated and safe, now that she was placed in supported accommodation.
  14. Later in 2019, the advocate told the Council that Ms X was being evicted from the supported accommodation because of extensive rent arrears (nearly £4,000). Children’s Services concluded that Ms X should work with esource C to follow the repayment plan to pay off the arrears to prevent her eviction. Children’s Services noted that there were historical allegations of sexual abuse from her peers and gang related activity. But it was assessed that her parents acted appropriately.
  15. Ms X contacted the Emergency Duty Service, saying she had been evicted five weeks ago from the supported accommodation and was staying with various friends. Children’s Services learnt that Ms X had been offered a studio flat by resource C, but Ms X had said that she was unable to take it. Ms X was advised to contact resource C as homeless.
  16. Ms X says that she was not entitled to the studio flat because the housing association said that she needed to be in long term employment, and she was not. Therefore, this was not a viable offer. It was also in an area where some of her previous criminal associates lived.

Events of 2020

  1. In early 2020, Ms X again contacted the Emergency Duty Services saying that she was homeless and was ‘sofa surfing’. Resource C said that it had no emergency accommodation for her. Ms X said that she would stay with a relative. Children’s Services agreed to review the case.
  2. Resource C told Children Services that Ms X could not live with her mother as it was unsafe and that she had lost her job and had no money.
  3. Subsequently, Ms X told Children’s Services that she was worried about getting involved again with the ‘drug culture’ and that sometimes she was sleeping in the cemetery. The Council agreed to ‘step up’ the case and it was passed to the Council’s Assessment Team.
  4. The Assessment Team’s social worker then told Ms X that she could stay at her mother’s and that resource C could not offer further accommodation because Ms X had extensive rent arrears.
  5. Ms X telephoned the Emergency Team again, saying she had nowhere to stay. She had gone to her mother’s address but had been thrown out and, out of desperation, she contacted one of the ‘older’ men (who she says had exploited her as a younger child) asking him to help. Ms X said that the male attacked her, as she would not do as he requested, and she had to be admitted to the Accident and Emergency Department (A&E).
  6. A nurse from the A&E department telephoned the Council advising that there had been a strategy meeting, but no social worker had attended the meeting. The hospital said that it could not discharge Ms X until it had spoken to a social worker about Ms X’s situation.
  7. A social worker became involved. A decision was subsequently made by the Council that Ms X was at risk of homelessness, at risk of child sexual exploitation (CSE) and at risk of experiencing further domestic abuse. It was agreed that there should be a children and family assessment and a strategy meeting.
  8. On 16 January, there was a strategy meeting. The conclusion was that:

“Social workers, health and police are worried that [Ms X] has been assaulted by someone she knows...we are worried that Ms X has been exploited and [Ms X] could be hurt again by him in future”

  1. It was agreed that Ms X should be referred to the Council’s Complex Safeguarding Hub for consideration of possible exploitation. It was agreed that Ms X should be accommodated under s20 because she needed a safe place to stay and had connections with different gangs in the Council’s area. Ms X was provided with accommodation and an IRO was appointed.
  2. In mid 2020, Ms X became eighteen. She was not regarded as a leaving care young person because she did not meet the 13 weeks threshold to be eligible. But it was agreed that Ms X would not be asked to leave her accommodation until after her complaints had been considered.

The Council’s complaint investigation

  1. The Council’s Stage 2 investigation did not uphold Ms X’s complaint that she should have been accommodated sooner. It was considered that the 2020 referral provided ‘new’ safeguarding concerns that were not present in 2019. It was considered that resource C had not raised any safeguarding issues, neither had the Police, even though the Police and MASH met daily to discuss Police concerns. Moreover, the Council considered Ms X could return to her mother’s home and she was provided with accommodation by resource C.
  2. The Council, however, recognised that Ms X had not been asked specifically about the possibility of criminal exploitation. But the Council noted that the MASH social worker had spoken to resource C and learned that Ms X had been offered counselling, which she had declined.
  3. Ms X says that she was not offered counselling but was offered a referral to a drug misuse agency, which she declined, as she did not consider this would be helpful to her.
  4. The Council’s investigation recognised that Ms X might have wanted an opportunity in 2019 to talk about the past criminal exploitation. But it was concluded that, despite this, the Council correctly referred Ms X to resource C to provide accommodation, if it proved impossible for Ms X to return home.
  5. Ms X considered the MASH social worker was dismissive of her concerns, telling her that her safeguarding concerns had been investigated (and not considered such that she should be accommodated) and there was no need for a children and family assessment. But, because the MASH social worker was unavailable for interview, the Council’s complaint investigation could not reach a finding on the actions of the MASH team.

The Council’s comments to the Ombudsman

  1. The Council has accepted that:

“as a point of learning, the Council should have recorded the assessments more clearly against a risk of homelessness, and while some discussions took place over the phone with Ms X, there should have been more detailed recording from the social worker.”

  1. The Council said that initially, when Ms X first approached the Council, she was offered suitable support from resource C and had available accommodation with her parents. However, it accepted it should have contacted Ms X directly to complete the ‘triangulation of information’. But it considered the information from resource C was detailed and accurate.
  2. The Council said that MASH closed the case, having confirmed all relevant information, that advice had been provided and that an assessment under s17 or s20 was not required. The Council considered that it would have been a misuse of its powers to open an assessment and offer s20 accommodation.
  3. In early 2020, the Council considered Ms X had available accommodation at either her mother or father’s home. It was not until the Council heard of the assault on Ms X, and possible exploitation, that the Council considered that at this point it was required to investigate Ms X’s circumstances more fully and the case was referred to the Council’s Complex Safeguarding Team. This is a multi-agency forum which seeks to assess risk and work with young people and adults at risk of or involved with criminal exploitation. It is a specialist service.
  4. The Council considered that the presenting situation in 2019 was responded to on the basis of what Children Services knew at the time. The Council said that there was no obvious reason why Children Services would ask about concerns regarding exploitation and that other professionals involved had also not asked those questions.

Analysis

  1. There is statutory guidance about how children and housing services should deal with requests for help from homeless 16/17 years old. The Council has guidance for its social workers, and resource C, based on the statutory guidance, and taking into full account the Southwark judgment. In addition, it has a booklet for young people so that they can consider, in their own time, the legislation and what the Council’s approach should be and how decisions will be made.
  2. This is good practice. But it is important that Council staff follow the guidance on such an important issue dealing with vulnerable homeless 16/17 years old. The events of this complaint show that the Council’s guidance was not followed.
  3. My view is that it was important in 2019 for the Council to properly assess Ms X to decide whether she was a child in need, because, if it was deemed that Ms X was, it followed that the Council had duties to support her under s17 and consider whether its s20 duties were triggered to safeguard and promote her welfare.
  4. To carry out an effective assessment, Ms X should have been afforded more opportunity to explain her predicament to a social worker. The matters, which she was struggling with, were sensitive, personal and distressing. She should have been offered a personal interview. In addition, her background risks were known to the Council and a proper assessment would have revealed her past history.
  5. Therefore, my view is that the Council was at fault for failing to assess Ms X properly and for not taking into account all the relevant information (known to the Council) and for not interviewing her personally. The Council’s decision that Ms X’s case was solely a housing matter, which had been resolved, was flawed.
  6. My view is also that the Council was at fault in that it failed to consider whether Ms X required accommodation under s20, as it was required to consider. Ms X presented as homeless and in need and, as the Council’s guidance highlights, homelessness is not confined to street homelessness. Consideration had to be given to whether the young person is ‘sofa surfing’ and it does appear that Ms X had been. And, after Ms X’s mother said that Ms X could return home, the Council failed to seek Ms X’s views and whether she felt safe to return home. She clearly did not and hence resource C provided her with supported accommodation, but without the benefit of this being provided to Ms X as a child in need and/or under s20.
  7. In addition, Ms X, her advocate and resource C raised significant safeguarding concerns about Ms X’s situation, on more than one occasion, and therefore there were reasonable grounds for the Council to make enquiries to enable it to decide whether to take any action to safeguard and promote Ms X’s welfare.
  8. The fact that there may have been available accommodation with Ms X’s mother or father was only part of the required consideration. The Council had to consider whether, to safeguard Ms X, whether it should provide her with accommodation under s20, (with all the statutory support which would follow) even though there was available accommodation provided by those with parental responsibility.
  9. I recognise that the Council considers that the information of 2020 about Ms X’s risks were ‘new’ and were not known in 2019. Hence, it says that its decision to accommodate Ms X in 2020 was based on new factors not known in 2019 and that it would not have made Ms X a s20 young person sooner.
  10. However, Ms X’s previous risk of possible criminal exploitation was known to the Council and recorded in its records. Moreover, other professional agencies, who had more direct contact with Ms X were raising concerns about Ms X’s risks and highlighting the past safeguarding risks.
  11. In addition, despite the Council having a booklet, which explains how the Council deals with homeless 16/17 year olds’ referrals, this was not provided to Ms X. Had the Council provided this, Ms X would have been fully aware of the requirements on the Council when assessing her homelessness referral, and she would have been in a better position to challenge the Council’s decisions at the time when it could have made a significant difference to events which followed.
  12. Accordingly, my view is that the Council has been at fault in the way it dealt with Ms X’s referrals of 2019.

What injustice has been caused to Ms X by the faults?

  1. The Ombudsman cannot question the merits of councils’ decisions, unless there was fault leading to them. In this case, my view is that there was fault.
  2. In Ms X’s complaint to the Ombudsman, she said:

“I have been physically attacked on two occasions and on both occasions Children Social Services neglected their duty of care. They ignored me and didn’t take me or what I was saying seriously. I was made to feel that my voice is not important and made to feel at fault for situations out of my control… It took for me to be physically hurt for someone to care. My words were not enough”

  1. On the balance of probability, if the Council had carried out a proper and full assessment in 2019, taking full account of the Southwark principles, it is more likely than not that Ms X would have been assessed as a child in need requiring accommodation under s20 to safeguard her welfare.

What are the consequences to Ms X?

  1. By not being accommodated under s20 in 2019, Ms X has been denied the statutory support she would have received as a looked after child. She would have had an allocated social worker, an IRO, statutory looked after child reviews and accommodation, paid for and provided by the Council. This would have been provided at a key stage in Ms X’s development when she was trying hard to break away from her previous lifestyle and, to use her words, ‘to better herself’.
  2. Ms X would also not have got herself in rent arrears or had the consequences of being homeless again later in 2019 or the anxiety about where she was going to live. Ms X also considers she would not have been driven ‘out of desperation’ to approach a previous criminal associate for help, when she was homeless with nowhere to stay, and that would have saved her being attacked.

How the Ombudsman remedies injustice caused by fault

  1. The Ombudsman’s Guidance on Remedies makes the following points:
    • for injustice such as distress, harm or risk, the complainant cannot usually be put back in the position they would have been, but for the fault. Therefore, we usually recommend a symbolic payment to acknowledge the impact of the fault;
    • there must be a clear and direct link between the fault identified and the injustice to be remedied;
    • distress can include uncertainty about how the outcome might have been different;
    • where the avoidable distress was severe or prolonged, up to £1,000 may be justified but we may recommend more in exceptional cases.
  2. My view is that Ms X’s injustice as a result of the Council’s faults is significant and merits a payment at the higher end of the Ombudsman’s tariff.

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Agreed actions

  1. It is to the Council’s credit it has agreed to the recommended remedy for the injustice caused so to safeguard and promote Ms X’s welfare now and save her the ordeal of a protracted complaint investigation.
  2. So, as from the date of the previous amended draft decision, the Council will consider Ms X:
      1. as a ‘new’ care leaver, aged 18, and that the other leaving care services (which she has missed out on) should be on offer to Ms X as if she has just left care. So, this would mean services might extend beyond Ms X becoming 21, or 25, if she pursues further or higher education. Consideration should also be given to whether Ms X is entitled to Council accommodation as a new care leaver; and
      2. will devise a pathway plan by the end of November 2021 which sets out what support Ms X now requires and what will be provided.
  3. In addition, the Council will, within six weeks of the date of the final statement:
    • pay Ms X £1,500 for the avoidable distress and harm caused to her by the faults identified; and
    • ensure Ms X’s rent arrears have been written off, and ensure that she is not deemed as intentionally homeless in future housing applications.
  4. Under 26 (D) powers, the Ombudsman can consider whether there may be other homeless 16/17 years old whose homelessness applications have not been dealt with properly and therefore they have suffered an injustice.
  5. The Council will within six months of the final statement:
    • review its homelessness applications from 16/17 years old between the period of April 2019 to March 2020 (the start of the lockdown) to check compliance with its own guidance and, if applications have not been dealt with properly, the Council will remedy the injustice caused to the young person without them having to make a formal complaint;
    • remind staff, who deal with homeless 16/17 year olds’ applications, that the Council’s guidance (based on the Southwark judgment and statutory guidance) should be followed; and
    • remind staff of the need to provide young people with its booklet and also tell them how they can complain under the statutory Children Act complaints procedure, if dissatisfied with the decisions made. Young people should not have to rely on advocates to tell them of the statutory complaints process.

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Final decision

  1. I find that there has been fault causing an injustice to Ms X. The Council has agreed the ways to remedy this complaint. I have therefore completed my investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman

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