Decision : Upheld
Decision date : 10 Jan 2022
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to properly consider his complaints about historic abuse while in care. We found there was fault. The Council agreed to consider the complaint Mr X raised in 2020 through the statutory children’s complaints process and make a payment to Mr X of £200 to recognise his time and trouble in bringing the complaint.
- Mr X complains the Council failed to properly consider complaints he made in 2016 and 2020 about abuse and mistreatment by social workers and foster carers while he was in foster care between 1994 and 2006.
The Ombudsman’s role and powers
- 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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 X and considered the complaint he raised. I asked the Council to explain its decision not to investigate Mr X’s complaints in 2016 and 2020 and I asked it to provide background information.
- I exercised discretion not to consider Mr X’s complaint as a ‘late complaint’ because of the nature of his concerns and because in these circumstances it is possible that records may exist that allow an investigation to take place covering events that took place over 12 months ago.
- Mr X 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
Relevant law and policy
- Section 3.3 of Getting the best from complaints: social care complaints and representations for children and young people sets out the statutory children’s complaints process. It states local authorities do not need to consider complaints made more than one year after the grounds to make the complaint arose. Local authorities can exercise discretion and review complaints after this time frame if it is deemed reasonable to do so.
- If a local authority opts not to review a complaint which is over one year old, it should write to the complainant explaining why.
- Section 22 of the 1989 Children Act sets out the general duty of the local authority looking after a child to safeguard and promote the welfare of the child. This duty underpins all activity by the local authority in relation to looked after children.
This duty has become known as ‘corporate parenting’. In simple terms, ‘corporate parenting’ means the collective responsibility of the council, elected members, employees, and partner agencies, for providing the best possible care and safeguarding for the children who are looked after by the council.
Background: Records of complaints Mr X had made while in care in 2008, 2009 and 2011
- In 2008 Mr X complained about delays in his allowance payments being made and the way that the staff in the Council’s after-care support service spoke to him and treated him. He stated the regular lateness of payments caused him difficulty getting to college. The Council apologised, stated an agency worker would no longer be employed by the Council and his payments would be monitored.
- In a new complaint in 2009 Mr X stated that problems with his allowances were still occurring. He stated there was a lack of interest by his after-care support worker in resolving the problem. The Council stated the problem was with administrative staff being on leave on this occasion. The Council apologised.
- In 2011, Mr X made a formal complaint about his after-care support worker. He stated his pathway planning had been 6 months late and he had been given contradictory information about the age to which the Council would support him financially. He recounted an incident when the support worker was over an hour late meeting him to buy things he needed. When he called to find out what was happening, she responded angrily and was abusive towards him. When they met to do the shopping a few days later Mr X said the support worker bought some personal items for herself on Mr X’s allowance and when Mr X asked her for the receipt the support worker refused to provide it and abused him further.
- Mr X stated in general his after-care support worker was confrontational, she was regularly abusive and swore at him frequently. He stated he had trust in the system but he did not understand why she treated him in this way. She was the only support he had, but Mr X stated she made him feel bullied, intimidated, scared and anxious. He stated his treatment had an emotional impact and affected his studies.
- The Council met with Mr X to discuss the issues at a mediation meeting. It explained that it would be difficult to investigate the way the support worker treated him because she no longer worked for the Council. However, following the meeting the Council contacted Mr X’s university and wrote to Mr X to explain what support it would continue to provide until Mr X was aged 25. This included some funding for his degree. Separately, the Council settled Mr X’s complaint. The Council stated in the absence of evidence to confirm his claim, it could not agree the Council had been responsible for Mr X failing his first year at university. However, it did accept there was some poor practice on the Council’s part. It made a payment to Mr X of £4000 as compensation and for the delay and for some travel costs.
Mr X’s 2016 complaint
- In 2016 Mr X stated he had recently asked the Council for a letter of support, explaining how his mental health affected him. This was for university. The person he spoke to stated they would get back to him. He chased this but his request was ignored. Mr X stated he felt worthless and let down by the care system in general.
- In his complaint Mr X explained that abuse by his after-care support worker had led to him suffering long term mental health problems. He referenced his earlier complaints about this and he noted action had been taken, however, he found that as time went on, his health had worsened and he suffered with panic attacks. He also struggled to trust other people. He stated this was causing him difficulty maintaining a job and it was affecting his relationships.
- He stated he was on medication and the previous abuse he suffered had ruined his life. He wanted the Council to recognise the long-term impact the issues had caused. He stated he had spoken to a solicitor, and they would be requesting his file.
- The Council response stated that after legal advice it had decided Mr X’s complaint should not be dealt with through the complaints process. Rather, Mr X should make a formal legal claim for compensation. It set out the reasons for this. The Council noted that because of the passage of time it was likely to be difficult to carry out an effective complaint investigation. The issues would also have to be judged against standards in place at that time. As a decision would need to be made about whether the Council had been negligent, this was a decision better suited to solicitors than the complaints process.
- The Council’s letter made no reference to the specific issues Mr X had raised in his complaint. Nor did the Council refer to the complaint it considered in 2011 about the same issue.
Mr X’s 2020 Complaint
- In January 2020 Mr X made a further complaint to the Council. He explained his background and when he entered the care system. Mr X stated he was writing about his experience in foster care and he had asked his foster carers for his original birth certificate and childhood documents. They had refused to give these to him.
- Mr X stated that he had suffered emotional and physical abuse by his long-term foster carers for many years and it was really hard for him to bring this up because he hid it for many years. Mr X went on to set out some of the abuse and ill-treatment that he suffered. This occurred at home and at a place he was sent to learn Arabic where he would be emotionally and physically abused if he made errors.
- Mr X also recounted the abuse he suffered from his after-care support worker. He said she would call him abusive names, make fun out of him regularly and she had also bought things for herself on his allowance. Mr X stated he would regularly run out of money and have to call and chase his allowance because his support worker was late completing the relevant paperwork.
- Mr X stated because of the abuse he suffered at the hands of his after-care support worker he had no trust in reporting the abuse from his foster carers at the time it occurred. He stated he had tried to forget these issues but when his foster carer refused to provide the childhood documents he was entitled to, he broke down and decided he needed to speak up. He explained the process of writing the complaint had been difficult and there may be other things that he had missed out.
- I understand Mr X chased his complaint on 6 February 2020.
- The Council responded to the complaint on 14 July 2020. It apologised unreservedly for the delay. The Council referred to Mr X’s 2016 complaint and the Council’s view that Mr X should seek legal advice and make a claim for compensation. It noted in 2016 and 2020 his complaints were over 12 months old, so the Council had discretion about whether to accept them.
- The Council stated the 2020 complaint broadly mirrored that which he made in 2016, but in 2020 Mr X had raised fresh reports. These were about abuse by his foster carers in addition to that of his after-care worker. The Council stated its position remained unchanged and it re-iterated its earlier advice for Mr X to make a claim for compensation via a solicitor. The Council did not respond to the concern Mr X had raised about not having his birth certificate or childhood paperwork and the rejection of his requests by his foster carers.
- On 25 August 2020 Mr X’s solicitor wrote to the Council to state his intention to pursue a claim for damages from the negligence of the Council. Within the letter, the solicitor stated, aged around 10 years old, Mr X had found the courage to tell his then social worker about the abuse he was enduring in the foster placement. However, the social worker did nothing about his reports. It noted Mr X had been exposed to an ultra-orthodox Mosque against his will and religious beliefs where he also suffered abuse. The solicitor explained they were seeking Mr X’s files in order to make a claim.
- No legal claim had been made when Mr X brought a complaint to the Ombudsman.
The Council’s Position
- The Council acknowledged that it had discretion and could consider complaints that were over 12 months old through the childrens’ statutory complaints process. However, the approach it had adopted in this case (and others) was based on legal advice. The Council’s legal advice was that claims of historical child abuse were more appropriately dealt with as a legal claim for compensation by the Council’s insurer. This was because:
- Access to staff involved at the time of historical allegations are likely to be difficult and this may prevent effective investigation of these complaints.
- Allegations of abuse while in care are effectively allegations that the Council was negligent or breached its statutory duties which are more appropriately dealt with as civil claims for compensation.
- The court has a wide discretion to allow personal injury claims to be brought after the three-year statute of limitations if it considers it appropriate to do so.
- The Council noted that Mr X had made complaints in 2008, 2009 and 2011, so it found it hard to accept that Mr X had difficulty raising his complaints of abuse sooner.
Was there fault by the Council
- The focus of our investigation is whether the Council properly considered complaints Mr X made in 2016 and 2020.
- Under the Statutory Childrens’ Complaints process, the Council can decide, in principle, not to investigate complaints about matters that are over 12 months old. However, we would not expect a council to dismiss such complaints, in a standard way solely because they are too old. Rather, we would expect councils to decide what approach it should take on the facts of each case, such as the significance of the issues reported, what records are available in each specific case and what the records show from the time period concerned. There should also be consideration about the reasonableness of expecting the complainant to pursue a legal remedy.
- Where children have been in care, councils are required to maintain records for 75 years from their date of birth. So, records of a child’s time in care settings should be available. Although this is the case, it is likely after many years that staff that were involved in Mr X’s case may no longer be employed by the Council.
- When the Council wrote to Mr X in 2016 and explained it would not investigate his abuse allegations I found that the Council’s letter rehearsed standard arguments why a council may not consider a complaint over 12 months old. It should have better explained how the Council had considered the circumstances in Mr X’s particular case when reaching its decision. There is no evidence the Council had considered Mr X’s personal circumstances as part of this decision. The failure to do so was fault.
- However, I found, on balance, the decision not to investigate the complaint in 2016 was one it was entitled to take. The records from Mr X’s 2011 complaint show that the Council had discussed similar issues then to those raised in 2016. As of 2012, the support worker who was the subject of the complaint was no longer employed by the Council and the difficulty in investigating, establishing what happened and how Mr X was impacted was discussed. The Council had also provided a remedy in respect of the complaint about the after‑care support worker in 2012.
- It took the Council six months to respond to the 2020 complaint, but when it did respond its letter was very brief. In July 2020 the Council’s response to Mr X reiterated its view from 2016. The Council noted there were new allegations against Mr X’s foster carers but it stated only that its position was unchanged and the Council reiterated its previous view that Mr X should take legal advice and make a claim. The Council did not comment on or explain why the Council considered the new allegations he raised; abuse from his foster parents; could or should not be robustly investigated. This was fault.
- The Council’s response in 2016 and 2020 taken together, suggest that the Council adopts a standard approach when presented with care leavers making historic abuse complaints. It refers them to solicitors to pursue negligence claims, rather than considering in individual cases if they could and should be investigated by the Council or if a legal claim may be more appropriate.
- The Council provided us with evidence that, in 2020, it had considered whether Mr X’s foster carers had been, or were still continuing to foster children after Mr X left their care. However, the Council made no reference to having considered this in its response to Mr X.
- I also found that in both 2016 and 2020 Mr X raised current issues that had triggered his complaints. In 2016 Mr X sought a letter from the Council to send to his university to help explain the issues he faced. In 2020 he stated that he had asked his foster carer for childhood documents which had been denied to him. In both 2016 and 2020 the Council did not seek to resolve or help Mr X with these points, even if it was not considering the historic issues. These issues could have been addressed inside or outside the complaints process.
- The issues Mr X raised about his foster carers were not properly considered. Given the fault we found in the way the Council responded in 2020, the Council should consider the allegations Mr X made about his foster carers as a complaint through the statutory childrens’ complaints process.
- To recognise the delay in responding to Mr X’s 2020 complaint and the failure to consider the complaint properly, necessitating the complaint to the Ombudsman, the Council should pay Mr X £200.
- Given the fault we found in the way the Council responded to Mr X’s reports from 2020, the Council should consider the allegations Mr X made about his foster carers as a complaint through the statutory childrens’ complaints process. This should be started within four weeks of my final decision.
- To recognise the delay in responding to Mr X’s 2020 complaint and the failure to consider the complaint properly, necessitating the complaint to the Ombudsman, the Council should pay Mr X £200. This should be paid within four weeks of my final decision.
- There was fault that requires a remedy. As the Council has agreed to provide the remedy we recommended, I have now completed my investigation and closed my file.
Investigator's decision on behalf of the Ombudsman