Summary: Miss X complained about failings in the way the Council cared for her son Mr Y under a Section 20 accommodation agreement and in its treatment of her. The failings in communication and in the Council’s oversight of the placement in Wales are fault. As are the significant delays in the statutory complaints process. These faults have caused Miss X an injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X complained about failings in the way the Council cared for her son, Mr Y under a Section 20 accommodation agreement and in its treatment of her. She complains of poor, unclear communication and a lack of documentation; unreasonable and unfair restrictions on her contact with Mr Y; and that council officers were unhelpful and threatening and did not treat her with respect.

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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)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents
• Miss X 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

Looked after children

6. The Children Act 1989 allows children to become looked after by a council in two ways. The first is a care order under s31 of the Act. The other is by a voluntary agreement with the child’s parents under s20 of the Act. Parents retain their parental responsibility for a child placed under s 20.
7. Section 20 of the Children Act 1989 says councils shall provide accommodation to any child in need within their area who needs it, because:
• there is nobody with parental responsibility to care for them;
• they have been lost or abandoned; or
• the person who has been caring for them being prevented from providing suitable accommodation or care.
8. Councils cannot accommodate a child under section 20 if a person holding parental responsibility objects and is willing and able to care for the child or arrange care for the child. But children aged sixteen or over can consent to being accommodated by the council without their parents’ consent.
9. The courts have held that the use of s20 must not be “compulsion by disguise”.

The statutory complaints process

10. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The accompanying statutory guidance, ‘Getting the Best from Complaints’, explains councils’ responsibilities in more detail.
11. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
12. 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 13 weeks to complete stage two of the process from the date of request.
13. 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.
14. 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 here

15. Mr Y was subject to a safer me plan due to neglect/ lack of supervision between March 2020 and October 2020. Miss X says Mr Y was at risk from external sources in the community. She says the Independent Review Officer (IRO) used the category ‘neglect’ as a default as there was no abuse in the home. In October 2020 Mr Y made allegations against Miss X to his support worker and refused to return home. The Council held a strategy meeting and began a child protection investigation under s47 of the Children Act 1989. Miss X agreed the Council could accommodate Mr Y and signed a s20 agreement. The Council arranged an emergency foster placement until 6 November 2020.
16. Mr Y moved to another foster placement in early November 2020 for a six week placement. Mr Y had withdrawn his allegations against Miss X and wanted to return home. The Council’s records state Miss X did not want Mr Y to return home at that stage due to her concerns around COVID. Instead a six week reunification plan would commence on 9 November 2020 and should this not work the Council would need to consider a more permanent arrangement such as a Special Guardianship Order or Care Order.
17. In late November 2020 Miss X raised concerns about the foster placement but advised the Council she did not want Mr Y to return home. She was concerned the reunification work had not happened and that there was no support in place over the Christmas holidays.
18. The foster placement broke down in early December 2020. The records state Miss X felt unable to keep Mr Y safe if he returned home. She wanted Mr Y to go into foster care with a view to a local residential place being found as part of a longer term support plan. Mr Y moved to another emergency placement until 10 December 2020.
19. As the Council could not source a further foster placement on 10 December 2020 Mr Y returned home to Miss X with support. This was arranged at short notice and the records state neither Miss X nor Mr Y considered the arrangement would work. On 12 December Miss X asked the Council to collect Mr Y and take him back into foster care. Mr Y returned to foster carers on 14 December 2020.
20. The Council identified two residential placements that could accommodate Mr Y, one of which was in Wales. Miss X initially had reservations about this placement as Mr Y would lose the link to his current educational placement. Miss X had wanted Mr Y to live with his godmother. The Council considered this option but the records show it was not possible. Miss X subsequently agreed to the placement in Wales.
21. Mr Y moved to the placement in Wales on 31 December 2020. A contact arrangement was agreed for Miss X and Mr Y to have telephone calls three times a week. Miss X agreed a contact plan directly with the placement for visits every third weekend. The Council was not involved in this discussion and had not agreed to this contact plan. Given the COVID 19 restrictions in place at that time neither officers nor Miss X could visit Mr Y in Wales in person.
22. The Council held regular child in care meetings and pathway planning meetings. The records show that in January 2021 there were concerns Miss X had a lack of understanding for Mr Y and did not prioritise his needs. The pathway plans note Officers were concerned Miss X did not work in an open and transparent way with professionals. Mr Y was under the impression the Council was preventing him from returning home and that Miss X was happy to have him back home. Miss X had not explained to Mr Y that he was at the placement in Wales as she had asked that he does not reside with her. It also noted that contact between Mr Y and Miss X was not always positive as Mr Y was reported to be in low mood after contact. There were concerns that Miss X’s negative conversations with Mr Y were impacting on his emotional wellbeing.
23. Miss X disputes this and says she discussed the placement with Mr Y. She says he would not have understood that the COVID 19 restrictions prevented him from returning home. Mrs X also says the placement investigated the reports of low mood after contact and confirmed a worker had mistaken melancholy and homesickness for low mood.
24. In March 2021 the Council agreed a reunification plan with Miss X. This required Miss X to agree to a Parenting Assessment and a Psychological assessment. The plan also set out that Miss X would have face to face contact Mr Y from 29 March 2021, once every three weekends and would be supported and supervised by staff from the placement in Wales. Miss X was unhappy that the plan specified Mr Y would not remain overnight in Miss X’s sole care.
25. The Council acknowledged Mr Y was currently accommodated subject to section 20, which was a voluntary agreement between Miss X and the Council so it was not in a position to deny overnight contact. But it asked Miss X to work with it and agree plans that all could agree were in Mr Y’s best interest.
26. Mr Y travelled back to Devon for face to face contact with Miss X in early April 2021. Miss X was unhappy with the restrictions imposed on their contact and asked for this to be considered at the next Child in Care meeting as she felt the section 20 agreement was being undermined.
27. The IRO noted there seemed to be some conflict arising from the s20 agreement and suggested Miss X and the Council draw up a “Contract of Expectations” setting out what is expected of all parties.
28. On 23 April 2021 a senior officer telephoned Miss X to explain the Council did not feel Miss X was working alongside the social worker to support Mr Y. They had sought legal advice and intended to elevate the case to Public Law Outline (PLO) to pursue care proceedings. The record of the call says the officer outlined the process and explained the Council expected Miss X’s full engagement with a schedule of expectations, including a parenting assessment and a psychological assessment.
29. Miss X says the officer was aggressive towards her during this conversation and accused her of collusion with the staff at the placement in Wales. Miss X says the officer also threated to relocate Mr Y and start court proceedings. She asserts the Council’s case record does not accurately reflect the conversation. Miss X is concerned the Council used the IRO’s suggestion of a contract of expectations to escalate the matter to PLO.
30. The Council then sent Miss X a letter before proceedings. It explained it was concerned about Miss X’s ability to care for her child and that unless improvements were made it would apply for an interim care order. It invited Miss X to a meeting in early May 2021 to discuss its concerns. The Council told Miss X it was concerned that having initially agreed to a parenting assessment and a psychological assessment she had subsequently declined to engage. It was also concerned that despite Miss X agreeing to Mr Y being accommodated under section 20, she was not honest with Mr Y as to why he is at the placement in Wales.
31. Miss X attended this meeting with a solicitor. The records of the meeting state Miss X did not agree with the Council’s concerns. She felt she had worked openly but this had not been reciprocated and there had been a breakdown in communication with the Council. Miss X wanted to consult her solicitor regarding the schedule of expectations. She did not consider a parenting assessment was necessary as there had been a Single Assessment in October 2020. Miss X subsequently agreed to both the parenting assessment and the psychological assessment. She did not sign the schedule of expectations, which she considered had a very negative focus. Miss X continued to have supervised contact with Mr Y.
32. In June 2021 the Care and Social Service Inspectorate Wales who were inspecting the placement in Wales informed the Council of concerns with the placement. The Council briefly made Miss X aware of the concerns and began looking for alternative provision while it awaited further details and the full report.
33. The Council’s records show Miss X agreed that Mr Y was settled at the placement in Wales and it would be good to avoid moving him if this was possible. The placement was working with the Council to reduce the concerns identified.
34. The records of a pre-proceedings review meeting in early July 2021 note that as Miss X confirmed she was not requesting Mr Y return home, pre-proceedings would cease. Miss X was happy for Mr Y to remain at the placement in Wales and complete his education. She wanted to build up to overnight contact. The Council told Miss X the parenting assessment would have to be completed before unsupervised or overnight contact could be considered. In September 2021 Miss X began visiting Mr Y in Wales.
35. The Council’s records show that in October 2021 officers worked with Miss X and Mr Y to draw up a plan regarding contact arrangements. As Mr Y was 16 the Council also discussed with him where he wanted to live and who he wanted to see and how often. Mr Y chose what information he wanted to share with Miss X. Miss X says Mr Y was coerced into staying in Wales and disputes that he withdrew consent to share information with her.
36. Mr Y remained at the placement in Wales until he moved to a new placement in Devon in August 2022. He turned 18 in at the end of 2022 and transitioned to adult services.

Complaints

37. In May 2021 Miss X made a formal complaint about the unfair and inappropriate treatment she had received from the Council since October 2020. Although she held full parental responsibility for Mr Y she complained her thoughts had not been taken into consideration and she had not been consulted on decisions during Looked after Child reviews. Miss X also complained there was no proper contact plan in place.
38. Miss X also asserted there should have been a legal and effective reunification plan in place before Mr Y moved to Wales so that contact visits could have started sooner. Miss X acknowledged the lockdown dates were different in England and Wales but felt that more could have been done.
39. In addition Miss X complained she had been subjected to discrimination and was being obstructed from working collaboratively with the team supporting Mr Y. Mr Y had made a number of allegations which Miss X was not initially made aware of. She asked for detail of the procedure for investigating such allegations. Miss X also raised concerns about how information was recorded. And questioned why Mr Y was returned to her care in December 2020 without a written support plan.
40. A senior officer met Miss X to discuss her complaint in June 2021 and the officer then wrote to Miss X formally responding to her complaint in July 2021. They apologised for the delay in responding and addressed each of Miss X’s complaints in turn.
41. Miss X was not satisfied by this response and asked for her complaint to be considered further. Miss X also raised a further complaint regarding Mr Y’s placement in Wales, following the recent Welsh Inspectorate’s report. The Council responded to Miss X’s new concerns and then agreed these could be added to the stage two complaint.
42. The stage two Investigating Officer and Independent Person were appointed in August 2021, and interviewed Miss X in September and October 2021. The heads of complaint were then agreed in January 2022 as:
1. The actions and attitudes of the Council had marginalised Miss X in Mr Y’s life which made the future likelihood of reunification more difficult.
2. Communication difficulties persisted despite reassurances from managers and Miss X still did not receive important responses, information, paperwork and minutes of meetings in a timely way.
3. Contact arrangements continued to lack a clear rationale and were having a detrimental effect on Miss X’s relationship with Mr Y. The focus on activity-based contact gave Mr Y unrealistic expectations for the future.
4. There was a lack of clarity about how and when contact would improve, and especially when contact would be unsupervised.
5. The Council had failed to exercise proper oversight of Mr Y’s placement in Wales and accepted reassurances without sufficient questioning.
6. Officer 1 failed to treat Miss X with respect as Mr Y’s mother and their negative attitude and uncivil manner caused Miss X distress and remained an obstacle to improving any trust and understanding between the Council and Miss X.
7. Officer 1 placed unreasonable restrictions on Miss X’s contact with Mr Y, despite Mr Y being accommodated under s.20. Miss X referred in particular to a threatening telephone conversation in April 2021.
8. Officer 1’s negative verbal attitude had left a legacy of suspicion and made it difficult for Miss X to establish a positive working relationship with the placement in Wales which consequently impacted on her relationship with Mr Y.
43. In April 2022 the investigating officer spoke with Miss X again as she had requested that additional officers be interviewed. There was a delay in arranging these interviews as the officers no longer worked for the Council.
44. The investigating officer circulated a draft report in July 2022 which Miss X commented on. They then produced a final report in August 2022. The Stage two investigation upheld complaint 5 and partially upheld complaint 2. It made no finding in relation to complaint 6 and did not uphold the remaining complaints. It concluded the Council had tried to work in partnership with Miss X and that social work staff had tried to understand Miss X’s perspective, the pressures she had experienced and to address her concerns with sensitivity. It also concluded the Council had tried to provide an appropriate package of support to address Mr Y’s complex needs.
45. Miss X disputed the stage two investigation findings and conclusions and asked for her complaint to be considered by the stage three review panel. Miss X attended the virtual panel meeting in November 2022 and had the opportunity to present her concerns.
46. The stage three panel upheld complaints 2 and 5, did not uphold complaints 1, 3, 4 or 7 and made no findings in relation to complaints 6 and 8. The panel noted there were significant communication difficulties between Miss X, the Council, and the placement in Wales. The Council had recognised this and transferred Mr Y’s case to a different team and social worker. The panel also considered there were clear failings in the oversight of Mr Y’s care at the placement in Wales.
47. The panel made the following recommendations:
• Miss X should receive the documents she believes are outstanding from previous requests;
• The Council should provide as soon as possible a simple guide for parents, carer, children, and young people explaining the regulations relating to s20 agreements;
• The Council should have mechanisms in place to ensure that actions agreed for improvement following the completion of stage 2 complaint investigations are completed in a timely fashion;
• The Council must ensure clarity in its communication with parents, carers, children, and young people, including explanations in jargon-free ways, for example the meaning of “unsupervised” and “recording” of phone calls.
48. Following the panel’s decision, the Council wrote to Miss X confirming it accepted the panel’s conclusions. It apologised for not always communicating with Miss X well or in a timely way and agreed there were significant shortfalls over a period of months in the quality of its communication. It noted that communication was now much better.
49. The Council also commented on the contact arrangements. It noted that “supervised” contact in this situation was to support the quality of contact between Miss X and Mr Y and could be better described as “supported” contact. It was in place to ensure their time together was positive. The Council said the timeline for unsupported contact was guided by Mr Y’s best interests and views. Miss X disputes this and says Y was not asked about contact planning and that the contact was never described as supported rather than supervised.
50. In addition the Council apologised that its usual processes did not identify the concerns about the placement in Wales which were later discovered by the Welsh Inspectorate. It noted the pandemic had an impact on normal practice and procedures but there were evident failings in Mr Y’s care at the placement in Wales. It apologised for the failure to provide Mr Y with the required standard of care.
51. Miss X remains dissatisfied and has asked the Ombudsman to investigate her complaint. She asserts the Council made a catalogue of errors in handling Mr Y’s case, including safeguarding him and supporting her. There were significant delays in the stage 2 complaint process and her complaints were phrased in such a way that many of the issues would never be upheld. Miss X says the Council has maligned her name and she now has depression, anxiety, and very low self-esteem. She says Mr Y had a dreadful experience at the placement in Wales and was treated badly. Miss X asserts he was unsafe in the placement and left with fewer independence skills than when he arrived. She also feels he has been failed in relation to his education.

Analysis

52. As set out above, where a council has investigated a complaint under the statutory children’s complaint process, we would not normally re-investigate it unless we consider the investigation was flawed.
53. It is clear that there were significant delays in the stage two investigation process, which took a year rather than the 13-week timeframe to complete. The Council says it took a long time to agree the heads of complaint with Miss X. This included two lengthy meetings and an additional stage 1 complaint was then added. It says the size and scope of the investigation was very large and it made considerable efforts to accommodate Miss X’s concerns. While I recognise the investigation involved a large volume of documents we expect Council’s to comply with statutory timeframes and such significant delays are not acceptable and amount to fault.
54. Notwithstanding this delay, however, there is no evidence of fault in the way Miss X’s complaint was investigated or the decisions reached. The stage two report is detailed and reasoned. Miss X has complained to the Ombudsman about the way the heads of complaint are phrased, but there is no evidence she raised any concerns when they were agreed or during the statutory process.
55. The stage three panel endorsed most of the stage two decisions but fully, rather than partially, upheld complaint 2 and instead of not upholding complaint 8, it made no finding. Miss X attended the meeting and was able to make detailed submissions to the stage three panel. There is no evidence of fault in the way the panel reached its findings.
56. There is no evidence Miss X did not agree to the Council accommodating Mr Y under a s20 agreement or that she was pressurised or coerced into agreeing to it. It is clear from the documentation that Miss X asked the Council to accommodate Mr Y and agreed to the placement in Wales. There is no record of Miss X withdrawing her consent or that she asked for Mr Y to return home to live with her.
57. Miss X is concerned that she was asked to sign a blank s20 agreement in December 2020 and was told the details of the placement would be completed later and a copy of the full document sent to her. She also says she was never given a copy of the Council s20 guidance booklet. And that no one, including her solicitor explained her rights and responsibilities under a s20 agreement.
58. There is no statutory requirement under the Children Act 1989 to have a written agreement in place for the s 20 to be valid. But case law says this it is good practice for the agreement to be properly recorded in writing and signed by the parent.
59. The copy of the placement agreement Miss X signed on 14 December 2020 is also signed by the foster carer but does not give their address. It instead notes the placement is to be confirmed with the foster care named as a possible placement. Miss X has noted on this form that she has not been provided with a copy of the Guidance for parents on Health Assessments for Looked after children/ young people.
60. Miss X also signed a consent form for access to Mr Y’s health records on 14 December 2020. She noted on this form that she had signed it unread.
61. There is no suggestion Miss X has at any point not known where, or with whom Mr Y was accommodated. The Council has agreed to the stage 3 panel’s recommendation to develop a guide for parents relating to s20 agreements. This is to be welcomed.
62. It is unfortunate that Miss X was unable to have face to face contact with Mr Y for several months following his move to the placement in Wales. This was due to COVID-19 restrictions, which were different in England and Wales, and were beyond the Council’s control. The geographical distance between the placement and Miss X’s home was also a significant factor in the contact arrangements once the restrictions were lifted.
63. Miss X is concerned the Council imposed conditions on her face to face contact with Mr Y and required it to be supervised, but the stage two investigation and stage three panel were satisfied the Council’s actions were appropriate. It is not unusual for there to be schedules of expectations or written agreements setting out what councils would like parents to do or not do while their child is subject to a s20 agreement. These documents are not legally binding or enforceable and in any event Miss X declined to sign a schedule of expectations. The Council explained the reasons for supervised or supported contact and asked Miss X to work with the Council in Mr Y’s best interests. The Council also took account of Mr X’s wishes and he was invited to contribute towards the contact arrangements.
64. If Miss X had insisted on unsupervised or overnight contact the Council could not have denied this, but it is likely, given the circumstances that led to Mr X coming into the Council’s care, that the Council would have considered legal proceedings to obtain a care order. The Council’s concerns and options were explained to Miss X in the pre-proceeding meeting.
65. The Council accepts there were failings in its communication with Miss X and has taken steps to improve this, including transferring Mr Y’s case to another team and allocating a new social worker. This is an appropriate response but is not in itself sufficient to remedy the distress and frustration caused to Miss X. I consider there should also be a symbolic financial payment.
66. The Council also accepts and has apologised for the failings in oversight of Mr Y’s care at the placement in Wales. Again this is an appropriate response and is to be welcomed.

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Agreed action

67. The Council has agreed to pay Miss X £400 in recognition of the distress and frustration caused by the failings in communication and delays in the statutory complaints process.
68. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

69. The failings in communication and in the Council’s oversight of the placement in Wales are fault. As are the significant delays in the statutory complaints process. These faults have caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman