Summary: the Council accepts it did not provide suitable care, accommodation or education for Mr X, an unaccompanied migrant child, because it failed to assess his needs and determine his age. It was only when Mr X secured the help of a solicitor after two years in the Council’s care that things began to get back on track. The Council has agreed a remedy for the injustice Mr X suffered in that time, which includes a lack of education, inappropriate care and a period of homelessness.

The complaint

1. Mr X complains about the care he received from the Council as an unaccompanied migrant child. He is unhappy with the Council’s response to his complaint, in particular the remedy offered for the injustice he suffered.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have considered:
• information provided by Mr X’s representative, including the Council’s response to Mr X’s complaint at all three stages of the children’s complaints process; and
• information provided by the Council.
5. I have taken account of government guidance, Care of unaccompanied migrant children and child victims of modern slavery. Statutory guidance for local authorities issued by the Department for Education in November 2017.
6. I invited Mr X, his representative, and the Council to comment on my draft decision.

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What I found

7. What follows is a brief outline of events. It is not intended to record everything that happened.
8. Mr X arrived in the UK in March 2016, aged 12, alone. The Council provided him with accommodation; first in local foster placements (until April 2016) and then a residential placement in Manchester.
9. Mr X was extremely distressed by the move to the residential placement and extremely unhappy there. He told staff he was 15, not 12. The Council accepted Mr X’s older age without question.
10. Mr X ran away from the residential placement and attempted suicide.
11. The Council then arranged a foster placement with a foster carer of the same nationality as Mr X. He stayed there for almost a year.
12. In early 2017, Mr X’s mental health deteriorated. Social care records show Mr X was distressed and preoccupied by what had become of his family. He found arguments with other children in the foster placement unsettling. He began to run away from the foster placement.
13. In April 2017, Mr X attempted suicide again. The Council moved him to a residential placement. A short time later, he was detained under the Mental Health Act. Whilst in hospital, Mr X told staff he was not as old as he had said. The Council refused to accept Mr X’s (original) younger age.
14. Mr X was discharged from hospital in September 2017. The Council arranged accommodation for Mr X in a residential placement in Staffordshire.
15. Mr X repeatedly ran away from the placement. Eventually, he failed to return. Council records described him as living “independently”.
16. The Council offered a number of independent or semi-independent placements which Mr X refused. He said he wanted a foster placement. The Council said there were no foster placements available.
17. Between January and April 2018, Mr X was ‘sofa surfing’ in London. At times, he slept on the floor of a restaurant where a friend worked.
18. In spring 2018, Mr X secured the help of the Refugee Council and a solicitor.
19. In May 2018, his solicitor contacted fostering agencies on his behalf and arranged a foster placement for Mr X the same day.
20. His solicitor asked the Council to formally assess Mr X’s age. The Council completed an ‘age assessment’ in June 2018 and concluded Mr X was the older of the two ages he had given.
21. Mr X challenged the Council’s assessment. In May 2019, the Courts decided he was the younger of the two ages he had given. They were critical of the Council’s age assessment.
22. In November 2019, with the help of his legal representative, Mr X complained to the Council about the care he received.
23. Unhappy with the Council’s response, Mr X complained to the Ombudsman.

Consideration

24. The Council considered Mr X’s complaint at all three stages of the Children Act complaints process. This is a formal procedure, set out in law, which councils must follow to investigate certain types of complaint. It involves:
• a written response from the Council (Stage 1);
• the appointment of an independent investigator to prepare a report (Stage 2); and, if the person making the complaint requests
• an independent panel to consider their representations (Stage 3).
25. When a council has investigated a complaint under the Children Act complaints process, the Ombudsman would not normally re-investigate it. We may consider whether a council has properly considered the findings and recommendations of the independent investigator and review panel, and any remedy the Council offers.
26. The Council upheld significant elements of Mr X’s complaint and offered a total of £2,000 in compensation. The Council accepted:
• it failed to carry out an age assessment when Mr X first became ‘looked after’;
• it failed to accurately record relevant information in Mr X’s files;
• it failed to assist Mr X with his asylum claim;
• its care planning, placement and review decisions were undermined by its failure to carry out an age assessment and an assessment of Mr X’s needs;
• it was wrong to appoint Mr X’s allocated social worker to undertake the age assessment;
• it failed to provide suitable placements (because of its failure to assess Mr X’s age and his care needs);
• it failed to arrange suitable education for Mr X.
27. The Council did not uphold Mr X’s complaints:
• that it failed to undertake an age assessment (which it decided was outside the jurisdiction of the complaints process following legal proceedings initiated by Mr X to challenge the Council’s age determination); and
• about the conduct of a named social worker and manager in connection with Mr X’s care and placements (which it believed to be outside the scope of the complaints process).
28. The Council apologised for its failures and explained the actions it had taken to address the problems identified. These included the establishment of a specialist team to care for unaccompanied asylum seeking children.
29. I welcome the steps the Council has taken to address the problems identified by Mr X’s complaint and to remedy the injustice caused to Mr X.
30. However, while the investigation rightly focuses on the detail of Mr X’s complaints, in doing so it appears to have missed the ‘bigger picture’.
31. Mr X was a looked after child. The Council was his parent. While the Council accepts there were serious shortcomings in the care it provided Mr X, it has not responded in the way I would expect a parent to respond in the circumstances.
32. First, the Stage 2 investigation sought to reject significant elements of Mr X’s complaint, including his complaints about the age assessment, the conduct of named social workers and the accommodation provided on the basis they were ‘out of jurisdiction’. This was wrong. None of Mr X’s complaints should have been excluded from the statutory children’s complaints process.
33. The Stage 3 Panel addressed some of these failings. The Panel unanimously upheld Mr X’s complaints about the suitability of accommodation provided on the basis the Council had not properly assessed Mr X’s needs or his age. The Council accepted the Panel’s findings. However, the Panel did not uphold Mr X’s complaint about the timing of the age assessment and took the view that complaints about the named social workers were also outside the complaints process. The Council has since accepted the investigation was wrong to exclude complaints about named social workers, but it has not responded in detail to those complaints.
34. Second, the Council does not appear to have acknowledged its overall responsibility for Mr X’s poor experience in the Council’s care.
35. I do not underestimate the challenges of providing appropriate care to meet Mr X’s complex needs.
36. However, the Council did not assess Mr X’s needs. This is a significant failing which undermined the Council’s ability to provide appropriate care for Mr X.
37. Further, the Council made no attempt to establish Mr X’s age until he secured the help of a solicitor, by which time he had been in the Council’s care for more than two years. Mr X had been in the Council’s care for two and a half years when the Court, considering his appeal against the Council’s age determination, ordered the Council to treat him as a younger child pending its final determination.
38. The Council’s failure to assess Mr X’s age further undermined its ability to provide suitable care, accommodation and education.
39. The social workers interviewed by the independent investigator at Stage 2 of the complaints process explained the difficulties they faced arranging suitable care and accommodation for Mr X. They said the type of placement he wanted was simply not available. Had the Council properly assessed Mr X’s age and needs, it would have been better able to search for a suitable placement. It would have known, for example, that independent living was not appropriate for a child of Mr X’s age at the time.

Conclusions

40. The complaints process has identified significant fault by the Council which I have outlined above. This fault had a significant impact on Mr X. He was a vulnerable, unaccompanied asylum-seeking child. He has been hospitalised because of his mental health. The Council was entirely responsible for his welfare.
41. For two and a half years, the Council treated Mr X as an older person than he was. The Council treated him as almost an adult when he was in fact a vulnerable child. This had implications for decisions concerning Mr X’s accommodation and education.
42. For approximately 6 months, the Council ‘lost touch’ with Mr X when he failed to return to accommodation offered by the Council. The Council’s efforts to secure alternative accommodation were undermined by the Council’s erroneous belief that he was older than he was.
43. When councils arrange accommodation for children, they are responsible for much more than simply providing a roof over the child’s head. The Council arranged foster care for Mr X for approximately a year until April 2017 when his mental health deteriorated and he was admitted to hospital. When he was discharged from hospital, and failed to return to his residential placement, the Council does not appear to have considered anything other than a ‘roof over his head’ when its focus shifted to semi-independent living. At the time, the Council should have been concerned with ensuring suitable aftercare to ensure Mr X’s recovery.

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Agreed action

44. Mr X is now settled and has returned to education. He wishes to move on, pursue his studies and make something of his life in England. In making his complaint, he was keen to ensure council services for other young people in similar circumstances improved. His complaint has clearly identified the need for improvements by the Council. This leaves me to consider an appropriate remedy for the personal injustice he suffered.
45. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mr X, we may recommend the Council makes a symbolic payment to acknowledge what could have been avoidable distress, harm or risk.
46. When the Ombudsman recommends a payment for distress, we only take account of avoidable distress that is the result of fault by the Council.
47. When we assess distress, we consider the complainant’s individual circumstances (such as their state of health and age). In reaching a view on remedy we will consider the complainant’s own assessment of the degree of distress or inconvenience they have suffered.
48. Our recommendation for a remedy needs to reflect all the circumstances including:
• the severity of the distress;
• the length of time involved;
• whether the person affected is vulnerable; and
• any relevant professional opinion about the effects on any individual.
49. A remedy payment for distress is often a modest sum. In cases where the distress was severe or prolonged, up to £1,000 may be justified. Exceptionally, we may recommend more than this.
50. In Mr X’s case, he was vulnerable, and his distress was severe and prolonged.
51. Mr X’s representative provided me with a statement from Mr X about his experience in the Council’s care and a copy of a psychological assessment which, although not prepared for his complaint, gives me an insight into his vulnerability. It describes Mr X suffering from PTSD as a result of events which led to him seeking asylum in the UK. Mr X was also detained for treatment under the Mental Health Act during his time in the Council’s care, further highlighting his vulnerability.
52. It is not possible for me to calculate a financial remedy for the distress Mr X has suffered as a result of fault by the Council. There is no formula I can use. Any recommendation I make can only be a symbolic payment to acknowledge his distress. It is not ‘compensation’.
53. In addition, Mr X did not receive suitable education for the two years he was in the UK before the Court ordered the Council to treat him as a younger child.
54. While the Council arranged a foster placement for approximately 12 months, which was good, it ‘lost touch’ with Mr X for almost six months following his discharge from hospital when Mr X was effectively homeless.
55. The Council also acknowledged delaying support with Mr X’s asylum claim which was no doubt a cause of considerable worry for Mr X.
56. Taking all of these factors into account, I recommend the Council offers a symbolic payment of £15,000 to acknowledge the injustice caused by its failure to plan Mr X’s care and education appropriately.
57. This is a symbolic figure. It represents the impact on Mr X’s education (£10,000), the Council’s failure to provide appropriate placements and care due to its failure to assess Mr X’s age and needs (£2,000), his period of homelessness (£2,000), and the distress caused to Mr X by the Council’s faults, including the delay to his asylum claim and his legal action to establish his age (£1,000).
58. The Council accepted my recommendation.

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Final decision

59. I have ended my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman