Summary: X, Y and Z complained the Council delayed in completing the statutory children’s complaint procedure when they complained about how the Council managed their foster care placement. They also complained the Council failed to carry out the recommendations it identified as necessary as a result of the statutory complaint procedure and failed to recognise the impact of the upheld complaint. The Council failed to complete some of the recommendations from the statutory complaint procedure, delayed in completing the complaint procedure and failed to appropriately recognise and remedy the injustice caused to X,Y and Z. The Council agreed to apologise and pay Y and Z a symbolic amount of £1,400 each and X £1,750 to recognise the injustice caused to them.

The complaint

1. X, Y and Z complained the Council delayed in completing the statutory children’s complaint procedure when they complained about how the Council managed their foster care placement. They also complained the Council failed to carry out the recommendations it identified as necessary during the statutory complaint procedure and failed to recognise the impact of the upheld complaint. X, Y and Z state this caused them frustration, distress and had a negative impact on their education.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
4. 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)
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

6. I considered the documents X, Y and Z sent to me and discussed the complaint with their representative on the telephone.
7. I considered the documents the Council sent in response to my enquiries.
8. X, Y and Z and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

Children who are looked after

9. Family Courts can make Care Orders which place children in the care of a council because of concerns that the way they are being looked after may cause them significant harm. The council may then arrange for the child to live with and be cared for by foster carers. The council retains overall responsibility for ensuring the child is looked after.
10. Councils have a duty to promote the educational achievement of children who are looked after. (Children Act 1989 section 22 (3)(a)). Every council must appoint an officer (Virtual School Head) with strategic responsibility for promoting the educational achievement of looked after children within the Council area.
11. The statutory guidance says that if it is not possible to maintain a child’s existing education placement because of a move in foster care placement, councils should ensure the child’s new placement is arranged at the same time as the care placement. The key principle is that councils should try to minimise disruption to a child’s education when arranging care placements. Where a child is moved in an emergency the council should secure a suitable new education placement within 20 school days. (Promoting the education of looked-after children and previously looked-after children February 2018)

Suitable education for pupils out of school

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19).
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

Statutory complaint procedure

14. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
15. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
16. If a complainant is not happy with a council’s stage one response, they can ask that it is considered at stage two. At this stage of the procedure, councils appoint an investigator and an independent person who is responsible for overseeing the investigation. Councils have up to 65 days to complete stage two of the process from the date of request.
17. After the investigation the council must write an adjudication letter to the complainant. This sets out its decision on each point, the actions it will take as a result and the timescale it will do it in.
18. If a complainant is unhappy with the outcome of the stage two investigation, they can ask for a stage three review by an independent panel. The council must hold the panel within 30 days of the date of request, and then issue a final response within 20 days of the panel hearing.
19. If a council has investigated something under the statutory children’s complaint process, the Ombudsman would not normally re-investigate it unless we consider the investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

What happened

20. In this decision when I refer to ‘the Council’ it means Lewisham Council.
21. X, Y and Z are siblings and are children. During the time period the siblings originally complained about they were looked after by the Council on a full care order and had been living with foster carers in a different council’s area for a few years. The Council said it had concerns about the wellbeing of the siblings in the foster placement in 2019.
22. In September 2020 the Council found a new placement for X, Y and Z. The Council told them it intended to move them from their foster carers in October 2020. The siblings complained to the Council about that decision and about their social worker. They asked for a looked after child (LAC) review meeting to discuss the reasons for the move and for the move to be cancelled.
23. In November 2020 the Council responded to the siblings at stage one and explained the reasons for the move and what its concerns were. It did not uphold their complaints. It agreed to put the placement move on hold while it investigated the complaint and agreed to arrange a meeting to discuss the concerns about the placement.
24. The siblings were dissatisfied with the Council’s response and asked it to consider their complaint at stage two in December 2020.
25. In February 2021 the Council decided the foster placement in the other council’s area was no longer appropriate for the siblings. The Council moved X, Y and Z to a foster placement in a different Council area. This meant that X, Y and Z could not continue to attend their school as it was too far away. At the time all three siblings were at secondary school, X was in year 10 and studying for GCSEs.
26. The siblings stated they were not provided a school place, or any education after they moved until April 2022. X was out of school for 34 school days, Y and Z were out of school for 33 school days.
27. The Council appointed an Investigating Officer (IO) and Independent Person (IP). They met with X, Y and Z and agreed a statement of complaint at the end of April 2021. The complaint was about the way the Council considered their foster placement in the other council area and removed them from it. The complaint had 14 points which included:
• the social worker raised their voice at them;
• they were moved unnecessarily and dishonestly and as a result their education was completely disrupted;
• the Council delayed on arranging school placements for them; and
• they were not listened to by the Council.
28. X, Y and Z stated they wanted to return to the other council area to live, to be able to speak to their previous foster carers, for the Council to apologise and for X to have a tutor.
29. The IO considered all of the available documentary evidence, interviewed key Council staff members, and X, Y and Z. The investigation did not uphold 11 points of the complaint. It partially upheld one point. It upheld that the social worker did raise their voice at X, Y and Z on one occasion and the children were without a school placement for half a term. It recorded that X had requested a tutor in March 2021.
30. The IO recommended the Council write a letter of apology to X, Y and Z for the upheld complaints. It said as the siblings were now in school it would be up to the school to request a tutor if it felt one was needed.
31. The Council wrote an adjudication letter to X, Y and Z in September 2021. It said it agreed with the IO’s findings but would not go over any of the points. It said it would meet with X, Y and Z individually if they wanted to discuss the report or its letter. The Council apologised for the delay in finding a school placement.
32. X, Y and Z asked the Council to consider their complaint at stage three at the end of September 2021. They wanted to know if the head of corporate parenting had been truthful in the information they gave the siblings about how the move had happened. X repeated their request for a tutor.
33. The independent stage three panel considered the complaint in December 2021. It sent its report to the Council at the end of December 2021. It did not change any of the findings of the stage two investigations. It noted the Council had failed to say how it would address the injustice caused to the children by the upheld complaint about the lack of school placement.
34. The panel recommended the Council should take a number of actions including:
• apologising for failing to recognise the injustice caused to the siblings by the lack of schooling when they moved foster placements; and
• the head of corporate parenting should tell the siblings whether they were being truthful in the information they gave the siblings about the placement move. This had been agreed in a meeting between X, Y and Z and the Council in February 2021.
35. The siblings’ representative complained to us in April 2022. They said the Council had not provided a response following the stage three panel meeting in December 2021.
36. The Council responded to X, Y and Z in May 2022. It apologised for the delay in sending its response. It said it agreed with the panel’s recommendations. It said:
• the school placement was in place only three days later than the guidance allowed. It apologised for that delay. It said its communication was poor as there had been a tutor and online platform available that it had not told X, Y and Z about. It did not acknowledge the injustice this caused to the siblings;
• X, Y and Z should let their social worker know if there was anything that could help make up for the period of lost education; and
• the head of corporate parenting had responded to X, Y and Z in writing, but in case they did not receive it the Council confirmed that they were truthful in the information they gave the siblings about the move.
37. X, Y and Z told us in May 2022 they were dissatisfied as the Council had taken so long to respond. They also said:
• they were dissatisfied with the Council’s response to the disruption of their schooling; and
• the Council had not sent the letter from the head of corporate parenting, and they believed they had been untruthful.

Further information

38. In response to my enquiries the Council told me it did not send the letter from the head of corporate parenting to the siblings. It sent me a copy of the letter dated 12 April 2022. The Council stated it included its contents in its stage three response.
39. X said that when they moved foster placement they were not able to finish two of the GCSEs they had been studying as the new school did not offer those subjects. X began taking their GCSE exams before the Council’s stage three response.

My findings

Statutory complaint investigation

40. The Council's stage two investigation was thorough, robust and well-evidenced. The stage two investigation found the Council at fault in how it managed some of X, Y and Z’s case. The stage two recommendations were not sufficient to remedy the injustice that had been found. However, this was identified and rectified by the stage three panel, which is one of the purposes of the panel meeting. As there was no fault in how the Council carried out the complaint investigation, I have no reason to question its findings.
41. The Council’s adjudication letter at stage two did not provide a response to each point of complaint or explain how the Council would rectify the injustice caused by the faults. This was fault. The Council told the siblings they could request a meeting if they wished to discuss it further. This put the onus back on the children to pursue a full response and was not in line with the guidance. These faults caused X, Y and Z frustration.
42. The statutory guidance sets out the timescales for each stage as outlined in paragraphs 15 to 18. There was significant delay at each stage of the statutory complaints procedure:
• The Council’s stage one response was 12 days late;
• The Council’s stage two response was 130 days late;
• The stage three panel was 13 days late; and
• The Council’s stage three response was 80 days late.
43. Overall, the complaint procedure took 235 days longer than the guidance allows. That was fault and caused X, Y and Z unnecessary frustration and distress.

Statutory complaint procedure recommendations

44. The stage three panel recommended in December 2021 the head of corporate parenting should write a letter to X, Y and Z about their foster placement move. This had previously been agreed between the Council and the siblings in February 2021. The Council had a copy of that letter but did not provide it to the siblings, it has not explained why it did not provide that letter. That was fault and eroded the siblings’ trust in the Council, which is significant given the siblings remain in the care of the Council.
45. The stage three panel recommended the Council acknowledged the injustice caused to X, Y and Z by the lack of education when they moved placements. The Council’s response did not acknowledge the injustice caused to them. It also put the onus on the children to identify any support they may need as a result. That was fault and caused X, Y and Z additional frustration and distress.

Education

46. The statutory guidance states the Council should secure education within 20 school days where a child who is looked after has been moved placements in an emergency. The Council took 26 days to arrange a placement for Y, 28 school days for Z, and 29 school days for X. The Council incorrectly identified this as being only three days out of timescale when it was 6, 8 and 9 days. Y did not start at their new placement for a further seven days, and Z and X a further five school days. The delay was not in line with the guidance and was fault.
47. Once the Council was aware the children were going to be out of school for more than 15 days it had a duty under section 19 of the Education Act 1996 to provide an alternative provision for them. The Council did not do so, and stated in its stage three response that there had been online and tutoring provision the siblings could have accessed but it did not tell them about it. X asked the Council for a tutor in March and April 2022 but did not receive one. The Council failed to meet its duty under the legislation and that was fault.
48. X was unable to complete two GCSEs they had been studying as a result of the Council moving their foster placement. Whilst I cannot question the Council’s decision to move the siblings, I have not seen any evidence the Council considered the impact on X’s education given that it was a crucial time for them in their GCSE years. The legislation states the Council had a duty to promote the educational achievement of X, Y and Z, the Council did not do that for X and that was fault.
49. The injustice caused to X, Y and Z by the faults identified in the above three paragraphs is that they were without any education for half a term. X was unable to complete two GCSEs and they were caused frustration and distress when they repeatedly requested a tutor and the Council did not respond. The Council has apologised for the delay in providing a school place, however it did not fully identify the fault or the injustice that caused. An apology is not a sufficient remedy for the injustice caused. I have made an appropriate recommendation below.

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Agreed action

50. Within one month the Council agreed to:
• write to X, Y and Z and apologise for the frustration and distress caused to them, for the failure to recognise the impact of the faults on their education, for the eroded trust in the Council and for putting the onus on the children to request a full adjudication and additional educational support;
• pay X, Y and Z £500 each to recognise the same. This should be deposited in the savings accounts the Council holds for them;
• pay Y and Z £900 each to recognise the half term they were without any form of education. This should be deposited in the savings accounts the Council holds for them;
• pay X £1,250 to recognise the half term they were without education and for the impact on their GCSEs. This should be deposited in the savings account the Council holds for them;
• send X, Y and Z a copy of the letter written in April 2022 by the head of corporate parenting.
51. Within two months the Council agreed to:
• remind all relevant staff members of the Council’s duties to provide an education for children who are unable to attend school because they have moved foster placements;
• remind relevant staff members of the timescales specified in the statutory guidance for children’s statutory complaint investigations;
• remind staff members who complete adjudication processes of the guidance to provide a response on all points of complaint and not to pass responsibility on to complainants to request an explanation; and
• share this decision with the Council’s Virtual School Head for their consideration.
52. The Council will provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I found fault causing injustice and the Council has agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman