Summary: The Council failed to keep Mr X’s status as a Child in Need under review. It also failed to consider whether Mr X qualified for advice and assistance when he turned 18. The Council has now agreed to provide this support. It should also apologise and pay Mr X £5000.

The complaint

1. Mr X complains the Council failed to provide him with support he was entitled to as a former looked after child. Mr X says the Council has recently informed him he was never a looked after child despite the Council placing him in boarding schools and funding placements in other areas for over ten years.
2. As a result, Mr X says he has not received any support for his transition to adulthood and has been left confused about the Council’s duties to him.

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The Ombudsman’s role and powers

3. 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)
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

5. I spoke to Mr X and his representative about the complaint.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman’s Guidance on Remedies, a copy of which is available on our website.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Relevant law and guidance

Section 17 of the Children Act 1989

10. s17(1) Children Act 1989 imposes a duty on the Council to safeguard and promote the welfare of children within their area who are in need, and promote their upbringing by their families, by providing a range and level of services appropriate to those children’s needs. Such children are referred to as Children in Need.

Section 20 of the Children Act 1989

11. Section 20 of the Children Act 1989 describes the circumstances in which a council has a duty to provide accommodation to children in its area. So far as is relevant to this complaint:

“A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.” (Children Act 1989, section 20(4))

12. However, section 20 also says:

“A local authority may not provide accommodation under this section for any child if any person who—

(a)has parental responsibility for him; and

(b)is willing and able to—

(i)provide accommodation for him; or

(ii)arrange for accommodation to be provided for him,

objects.” (Children Act 1989, section 20(7))

Looked After Child

13. A Looked After Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority under section 20 of Children Act 1989. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours.

Duties owed by councils to former Looked After Children

14. The Children Act 1989 sets out the duties of councils to former Looked After Children when they turn 16 or 18 until the age of 21. This can be extended to the age of 25 where the former LAC is still in full time education. Councils must provide:
• A Personal Advisor
• A Pathway Plan, kept under regular review
• Assistance with employment, education and training, including help with university fees
• Assistance with accommodation
• Help with living costs (Children Act 1989, section 23C)

Section 24A and 24B of the Children Act 1989

15. Sections 24A and 24B of the Children Act 1989 set out a council’s duty to provide advice and assistance to qualifying young people. Under this section, councils can help young people over 18 who are not former Looked After Children. The advice and assistance can include financial support and accommodation.

Statutory Procedure for Complaints about Children’s Services

16. The law sets out a three stage procedure for councils to follow when looking at complaints about children’s social care services. At stage 2 of this procedure, the Council appoints an Investigating Officer and an Independent Person (who is responsible for overseeing the investigation). If a complainant is unhappy with the outcome of the stage 2 investigation, they can ask for a stage 3 review. If a council has investigated something under this procedure, the Ombudsman would not normally re-investigate it unless we consider that investigation was flawed. However, we may look at whether a council properly considered the findings and recommendations of the independent investigation.

Background

17. In 2008, the Council received a safeguarding referral for Mr X and his siblings from their school.
18. Mr X’s mother, whom I shall call Ms Y, admitted that she had hit the children and was struggling to manage their behaviour.
19. The Council accommodated Mr X and his siblings under section 20 of the Children Act 1989 (section 20) for two weeks with Ms Y’s consent. Mr X went to live with a foster carer.
20. Ms Y withdrew her consent to the section 20 accommodation and the Council returned the children to her care. It then assessed Mr X at home.
21. The 2008 assessment records that Ms Y insisted that she could not care for her children full time. She wanted them to attend boarding school. The assessment records Ms Y as saying that if the Council did not pay to send her children to boarding school, it would have to take them into care.
22. In 2009, the Council agreed to fund boarding school for Mr X and his siblings. The Council says it did this under its section 17 powers for Children in Need as a way of preventing the children becoming Looked After.
23. Over the next 10 years, Mr X attended three different boarding schools, all of which were paid for by the Council.

The basis for this complaint

24. When Mr X turned 18, his support from the Council ended. He complained about not receiving the continuing support he thought he was owed as a former Looked After Child. This included support with his university fees, accommodation, and a personal advisor.
25. The Council says that it has been clear all along that Mr X was a Child in Need, not a Looked After Child, and so it has no continuing duty to him.
26. The Council dealt with Mr X’s complaint under the statutory procedure for complaints about children’s services. The stage two investigation upheld the complaint that the Council had not responded to the stage one complaint in time. It did not uphold any other part of the complaint.
27. Mr X then asked for a stage three panel. The stage three panel did not make any findings about the substantive complaint. However, it was critical of the stage two investigation. The panel did not think the stage two investigation “had been properly undertaken”. The panel was particularly concerned that the Investigating Officer (IO) did not meet with Mr X to discuss his complaint.
28. The Ombudsman does not reinvestigate where there has been a full statutory complaints process unless we consider that process was flawed. In this case, the IO failed to meet with Mr X to discuss his concerns or hear his version of what happened. This is fault.
29. The stage three panel found the stage two was inadequate but did not make its own findings or recommend a new investigation. Therefore, the Ombudsman will reinvestigate this complaint.

My findings

Mr X’s status as a Child in Need or Looked After Child

30. The Council says it has always been consistent in its position that Mr X was supported as a Child in Need. The Council’s response to my enquiries and its correspondence with Mr X’s most recent school show that this is not the case.
31. The Council sent two documents to Mr X’s school in September 2017. One refers to Mr X as a Child in Need. The other, a Young Persons Placement Plan, says his legal status is “section 20” and contains the question “Has the school/establishment been informed that the child/young person has become a Looked After Child or changed placement?” The Council answered yes to this question.
32. In response to my enquiries, the Council provided copies of various assessments of Mr X. The end of these assessments include an outcome. Two of the documents from 2017 record the outcome as “Looked After Child”.
33. Therefore, I find there was internal inconsistency about Mr X’s legal status within the Council. Mr X’s confusion about his relationship to the Council is entirely understandable.

Failure to review the decision Mr X was a Child in Need

34. The Council decided Mr X was a Child in Need in 2009. Records of a meeting show the Council decided attending boarding school might avoid Mr X becoming Looked After. Although an unusual arrangement, the Council considered whether the section 20 criteria were met so this is not fault.
35. However, in an assessment in 2011, the Council said that being in boarding school was safeguarding Mr X from harm. It said were he to return to his mother’s care full time, he would be at “risk of emotional and physical harm” from his mother.
36. This should have prompted the Council to consider whether the criteria for section 20 were now met. There is no evidence the Council asked itself this question in 2011 or at any point until 2017. This is fault.
37. In 2017, the Council did ask Ms Y for consent to accommodate Mr X under section 20. This suggests the Council considered the arrangement met the criteria. The Council says Ms Y did not want Mr X to be accommodated under section 20 and so the Council could not do this.
38. However, section 20(7) says the Council cannot provide accommodation where a person who has parental responsibility and is willing and able to provide accommodation to the child, objects.
39. As assessments in 2011 and 2017 found, Ms Y was not willing and able to provide accommodation to Mr X and his siblings. She told the Council that she would not have the children living with her full time. In meetings in 2017 and 2018, Ms Y refused to provide any financial support for Mr X.
40. In 2017, the Council should have considered whether Mr X’s circumstances met the criteria for section 20 despite Ms Y’s refusal. There is no evidence it considered whether section 20(7) applied. This is fault.

Section 24A and 24B

41. The Council says that Mr X was never Looked After, and that it would not have decided he was Looked After if it had properly revisited the question since 2009.
42. However, in its response to my enquiries the Council accepts it did not consider whether Mr X met the criteria for advice and assistance under section 24A and 24B when he turned 18. This is fault.
43. The Council says it has now decided Mr X is a qualifying person under this section. It will therefore provide him with a personal advisor and financial support to continue his education.
44. This is like the post-18 support Mr X would receive if he were a Looked After Child. The Ombudsman’s goal is to put complainants into the position they would have been were it not for fault. Considering this, there is no need for the Ombudsman to make a finding about whether the Council would have decided Mr X was Looked After at any time since 2008 had it properly reviewed his circumstances.
45. If the Council had considered its duty to provide advice and assistance when Mr X turned 18, he would already be in receipt of this support. Instead, he has had over a year on his own, without proper support from either his mother or the Council.
46. Furthermore, Mr X must still live with the uncertainty of not knowing if he could or should have received the additional support and protections owed to Looked After Children. This uncertainty spans over 10 years and will follow him for the rest of his life. This is a significant injustice.

Agreed action

47. The Council has agreed to provide Mr X with:
• a Personal Advisor;
• £3000 as a bursary to support his living costs; and
• £2000 as a setting-up home allowance.
48. This financial support should be backdated to when Mr X turned 18.
49. In addition, I recommend the Council provide an extra year of support from the Personal Advisor since Mr X has missed a year of this.
50. The Council should also provide a remedy for the unnecessary uncertainty Mr X must now live with and the extensive time and trouble he has been to in bringing his complaint.
51. In considering this remedy, I have taken into account that Mr X says he is grateful for the educational opportunities he received as a result of the Council’s decision to fund boarding school placements for him. He now attends university and says this wouldn’t have been possible without these opportunities.
52. Nevertheless, the Council’s fault affected Mr X at a particular vulnerable time in his life and over an extended period. Therefore, I recommend the Council:
• Apologise to Mr X in writing; and
• Pay Mr X £5000.
53. The Council should take this action within four weeks of my final decision.
54. When an investigation finds fault, the Ombudsman can also recommend the Council take action to improve its services. In making the following recommendations, I have considered that Mr X’s circumstances are unusual and don’t reflect the experience of most children in the Council’s area.
55. To improve its services, the Council should:
• Ensure it responds to stage one complaints within the statutory timescale of 20 working days;
• Remind relevant staff that decisions about Child in Need and Looked After Child status should be regularly reviewed and decisions clearly recorded; and
• Remind relevant staff to consider and record whether young people not entitled to the support owed to former Looked After children qualify for advice and assistance under section 24 of the Children Act 1989.
56. The Council should tell the Ombudsman about the action is has taken within eight weeks of my final decision.

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Final decision

57. I have completed my investigation. The Council is at fault. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman