London Borough of Lewisham (18 013 313)

Category : Children's care services > Other

Decision : Upheld

Decision date : 07 Jun 2019

The Ombudsman's final decision:

Summary: Mrs X complains the financial redress offered to her by the Council for its failings in supporting her son as a Child in Need and a Looked after Child was inadequate. The Council has accepted it was at fault and in addition it delayed in dealing with Mrs X’s complaints. It has already apologised and offered a payment in recognition of the loss of service and distress caused. However, the Ombudsman has recommended an extra payment to Mrs X and an amount to her son to acknowledge the injustice which they suffered.

The complaint

  1. The complainant whom I shall refer to as Mrs X complains the financial redress offered to her by the Council for its failings in supporting her son Y was inadequate. And failed to address the psychological, emotional pressure suffered by her and her family and the distress caused.

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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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
  3. We may 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. (Local Government Act 1974, section 26D and 34E, as amended)
  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)

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How I considered this complaint

  1. I have read the papers submitted by Mrs X and discussed the complaint with her. I considered the Council’s comments about the complaint and the supporting documents it provided. I have explained my draft decision to Mrs X and the Council and considered the comments received.

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What I found

  1. The Children’s Act 1989 places an obligation on a council to help families who need help on bringing up their own children. Part III of the Act provides the basis in law for providing local services to children in need under the age of 18. It says it is the general duty of a council to safeguard and promote the welfare of children in their area in need. And as far as it can to promote the upbringing of such children by their families. This is by providing a range and level of services appropriate to those children’s needs.
  2. The Leaving Care Act 2000 says that every 16 or 17-year-old who has been Looked After by a Council for 13 weeks or more since the age of 14 becomes entitled to Leaving Care Support. So, the Council has a duty to the young person to provide a social worker and personal adviser.
  3. The government provided guidance on Getting the Best from Complaints in 2006. This says a council has a duty to act ’expeditiously through the procedure; this is to ensure the complaint is dealt with as swiftly as possible.’

Background to the complaint

  1. Mrs X lived with her son Y and daughter Z. Mrs X says she has been asking the Council for help with Y since 2010. Y was diagnosed with autism in 2012 and became a Child in Need (CIN). As a CIN Y should be subject to CIN reviews and Care Planning by the Council to ensure he and his family receive support.
  2. Y suffered mental health issues when he was 16 and became a Looked After Child (LAC) by the Council for a short time. So, Y should be subject to a care plan and LAC reviews to assess his needs. Mrs X says the lack of support to Y impacted on Z as well as she was studying for exams. The Council transferred Y to Adult Social Services when he was 18 and he currently lives at a residential placement.
  3. Mrs X made formal complaints to the Council in May 2016, November 2016 and February 2017 about the lack of support she and Y received from the Council to help her care for Y. Mrs X said Y was a CIN and LAC and the Council failed to provide her with support in 2012 and after care assessments in 2014 and 2015. Mrs X said the Council failed to help Y due to a health condition and on his discharge from hospital in 2014. Mrs X said Y’s social worker failed to meet with him for three months and her complaints were not properly addressed. Mrs X asked the Council to formally recognise its failure and provide her with financial redress.
  4. The Council considered Mrs X’s complaints through the Children Act statutory complaints procedure. The Council appointed an Independent Officer (IO) to consider Mrs X’s complaints at Stage two of the procedure. And an Independent Person (IP) to ensure the investigation was carried out properly. The IO reported Mrs X’s May 2015 complaint was not addressed until July 2016 by the Council. And the complaints in November 2016 and February 2017 not considered until May 2017.
  5. The IO investigated and upheld Mrs X’s complaints about the lack of support from the Council. And its failure to address her complaints for over a year. The IO said, ‘the collective failure by Children’s Social Care and then the Complaints Manager was so appalling.’ The IP also commented ‘it is tragic Mrs X had to wait so long to get her complaints about the failure of the Local Authority to support her son, aired. That she and her son have suffered, there is no doubt.’
  6. The Council considered the IO’s report and IP’s comments in July 2018 and accepted all the findings. The Council upheld Mrs X’s complaints. On Mrs X’s request for financial redress for the Council’s failure to support her while caring for Y, it apologised the service was not as it should have been. It offered Mrs X £5000 in recognition of the lack of support to her as a family because of Y’s status as a CIN and LAC. The Council offered Mrs X £250 for the failure to comply with the complaints procedure rules because of the delays in addressing the complaints. The Council confirmed it carried out changes to its policies and practices to ensure young people received proper support.
  7. Mrs X was satisfied with the result of the investigation into her complaints but disagreed with the amount of financial redress offered by the Council. Mrs X said she did not keep receipts for items bought for Y before receiving benefits. She considered it impossible to put an amount on the ‘mental torture’ suffered due to the lack of response from officers. Mrs X asked for a Review Panel hearing into her complaint about the financial redress offered by the Council.

Review panel hearing

  1. The Council arranged for a Review Panel hearing to consider whether the financial remedy offered by the Council was appropriate after all Mrs X’s complaints had been upheld. The Panel considered the comments made by Mrs X and the outcome of the stage two investigation. The Panel considered the amount offered by the Council for the failings in the complaints procedure and recommended an increase to £500.
  2. The Panel noted Mrs X’s concerns about lack of support for Y but did not consider it should try to identify or quantify what the support could or should have been. But recognised there were long periods when Mrs X did not receive the support she needed. The Panel considered precedents of payments made by the Ombudsman and recognised facts in cases differed. But recommended the Council should review and ‘modestly ‘increase the amount offered (£5000) to reflect the specific circumstances of Mrs X’s case and difficulties she faced.
  3. The Council considered the outcome of the Panel hearing. It reviewed the case but told Mrs X it did not intend to increase the financial redress offered. It said the £5000 was reasonable and reflected a genuine intent to offer a proportional but symbolic remedy. It said it would award Mrs X and Y an equal share of the £5000. The Council considered the delay in dealing with Mrs X’s complaints and in recognition of the time spent by Mrs X in pursuing the complaints agreed to increase the offer to £500. The Council offered an extra £500 for her time and trouble and distress caused. The Council said it considered the £1000 recognised the impact onto Y and Mrs X.
  4. Mrs X remains unhappy with the Council’s offer of financial redress and says it fails to recognise her family’s suffering. Mrs X says the Council failed to follow the Panel’s recommendation to increase the financial offer.

Council’s comments on the complaint

  1. The Council says its offer of £5000 to Mrs X was a symbolic sum not a payment to remedy quantifiable loss. And while it did consider the Panel’s recommendation to increase the offer to Mrs X, the Panel did not state what sum it considered appropriate. Neither has Mrs X said what increase she would wish to see. The Council considered it had no need to assess quantifiable losses. So, considered the original offer of £5000 fair.
  2. The Council says it was also mindful that despite the acknowledged and regrettable lack of service, there was no way of knowing if the services, had they been in place to support Y and Mrs X, would have made a positive difference to the outcome for Y.
  3. The Council says it decided not to treat Mrs X and Y as separate complainants. It says Mrs X as mother was the complainant and not the young person. It says she was not making the complaint jointly with Y, nor was he wanting to make a complaint in his own right. But the Council felt it appropriate after the Panel hearing to recognise him as suffering an injustice because of loss of service. This was reflected in the Stage three response after the Panel hearing.

My assessment

  1. The documents provided by the Council show it has accepted the service provided to Mrs X and Y was not of an acceptable standard and it upheld all of Mrs X’s complaints. I consider the failure to provide support to Mrs X and Y was fault by the Council. It has caused an injustice to Mrs X and Y as they did not have the support the law requires the Council to provide. And so, they have no way of knowing whether the support if provided, would have made a difference for Y.
  2. The Council initially offered Mrs X financial redress of £5000. I consider this a suitable amount in line with the Ombudsman’s guidance on remedies. This is because there has been a long and sustained failure to provide Mrs X and Y with any support or service. As such I do not consider the £5000 should be shared with Y. It should be a full payment to Mrs X. The Council did not originally offer the £5000 on the basis it would be split between Mrs X and Y. It made its offer of £5000 directly to Mrs X in her own right. I consider the injustice to Mrs X is severe enough for her to be awarded the £5000 in full.
  3. The Council’s documents show it did consider the Panel’s recommendation to modestly increase the financial redress offered. But the Council did not consider the Panel nor Mrs X provided any further information to persuade the Council to increase its offer of £5000. I am also not persuaded that Mrs X should receive any further compensation above the £5000 offered. This is because it is a symbolic remedy for the loss of service. And I consider it is line with the Ombudsman’s guidance on remedies.
  4. I consider Y has an injustice in his own right due to the Council’s failure to provide him with support before he transferred to Adult Social Services. The Council says Mrs X was the complainant and not jointly making the complaint with Y. And neither was he wanting to make a complaint in his own right.
  5. However, the Ombudsman does not need Y’s consent or complaint to investigate. This is because we have powers to do so if we consider anyone else may have an injustice as explained in paragraph eight. The Council accepted Y has suffered an injustice because of its failures and loss of service to him. I agree and so consider Y should receive £2500 which the Council proposed as a payment to him in recognition of the injustice suffered. Y can then complain in his own right if he wishes to do so on events since his transfer to Adult Social Care.
  6. The Council has accepted the delay in dealing with Mrs X’s complaints through its complaints procedure. The delays were severe and caused Mrs X an injustice in not being able to have her concerns considered for over a year. So, I consider the Council’s offer of £1000 for her time and trouble and distress to be a suitable one.

Agreed action

  1. To remedy the injustice caused to Mrs X and Y the Council has agreed within eight weeks of my final decision it will:
    • Provide Mrs X with a financial remedy of £5000 to reflect the loss of service which its faults caused;
    • Provide a financial remedy of £1000 for the time and trouble and distress caused to Mrs X by its failure to deal with her complaints in a timely way;
    • Provide Y with a financial remedy of £2500 to reflect the loss of service which its faults caused.

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Final decision

  1. I am completing my investigation. I have found there was fault by the Council in the way it provided support to Mrs X and Y as a CIN and LAC before his transfer to Adult Social Care. This caused an injustice to Mrs X and to Y and I have recommended a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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