London Borough of Lewisham (20 001 550)

Category : Children's care services > Other

Decision : Upheld

Decision date : 09 Feb 2021

The Ombudsman's final decision:

Summary: the Council made mistakes when it removed Mr X from his foster carer, Mr F, following Mr F’s arrest. The Council has apologised for its mistakes and offered a suitable remedy.

The complaint

  1. Mr X complains about his treatment by the Council’s Children’s Services, and in particular the Council’s failure to take account of his wishes and feelings. The Council removed Mr X from his foster carer, Mr F, in April 2018 when Mr F was arrested. Mr X objected. Mr X complains he was then accommodated in an unofficial placement that was overcrowded and where he had to sleep on the floor. He complains he missed a foreign holiday with Mr F and made his own arrangements to stay with family instead. He returned to Mr F’s care in August 2018. Mr X says the Council’s actions caused him considerable frustration and distress. He does not consider the Council’s offer of compensation sufficient.

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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. 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 considered:
    • information provided by Mr X; and
    • information provided by the Council, including its response to Mr X’s complaint at all three stages of the statutory children’s complaints process.
  2. I invited Mr X and the Council to comment on my draft decision.

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What I found

What happened

  1. Mr X is a looked after child. He has lived with Mr F, his foster carer, for many years and sees Mr F as his father.
  2. Mr F was arrested in April 2018. The Council decided Mr X should not live with Mr F while the Police carried out their investigation and decided whether to charge Mr F. Mr X went to stay with Ms Y, a family friend he had occasionally stayed with before. Ms Y was not an approved foster carer. Her flat was overcrowded and Mr X had to sleep on the floor in the living room. The Council decided this arrangement was acceptable as an emergency arrangement while the Police decided whether to charge Mr F, and was preferable to placing Mr X with a foster carer he did not know. The Council decided Mr X could not go on a planned summer holiday with Mr F.
  3. The Police investigation took longer than the Council appears to have expected. Mr X complained about his accommodation with Ms Y and eventually took himself off to live with relatives. He says he lost touch with the Council. In August 2018, Mr X returned to live with Mr F. The Council carried out a risk assessment and decided it would continue to support the arrangement, even though Mr F had been suspended as a foster carer and the police investigation was ongoing.
  4. In March 2019, the Police and Crown Prosecution Service (CPS) decided not to charge Mr F.

Mr X’s complaint to the Council

  1. Mr X made a number of complaints to his social workers about the Council’s handling of events in 2018. Unhappy with the response, he made a formal complaint with the support of an advocate in July 2018. The Council responded at all three stages of the statutory children’s complaints process. The Council appointed an independent investigator who produced a detailed report of his findings. The independent investigator recommended the Council offer Mr X compensation for the faults he identified and suggested the Council consider guidance published by the Ombudsman on remedies. The Council accepted the investigator’s findings and recommendations and offered Mr X £1,600: £1,500 for the faults identified, and £100 for the delays in responding to his complaint. The Council apologised for its mistakes. Mr X was dissatisfied with the Council’s offer and complained to the Ombudsman.

Consideration

  1. When a council has investigated a complaint under the statutory children’s 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 any remedy the Council offers.
  2. I have carefully considered the independent investigator’s report. I am satisfied he carried out a through and fair investigation. I accept his findings and recommendations. I do not intend to re-investigate the complaint myself.
  3. The independent investigator concluded the Council had demonstrated a ‘level of risk aversion which impacted negatively on Mr X’ following the arrest of his foster carer, Mr F. The Ombudsman focuses on the Council’s decision-making processes, not the decisions themselves. We have neither the authority nor the expertise to offer our own views about what the Council should have done. The independent investigator found there was disagreement between senior officers about whether it was safe for Mr X to continue to live with Mr F. He concluded that risk assessments the Council undertook in August 2018, which supported Mr X’s return to Mr F, should have been done sooner. Councils are responsible the safety and wellbeing of their looked after children, and Mr X’s complaint highlights the need for Councils to balance risk against the impact of disrupting long-term placements. In Mr X’s case, the Council was at fault because it failed to carry out assessments, which took account of Mr X’s wishes and feelings as well as the risk posed by Mr F, at the right time.
  4. The independent investigator was also critical of the Council’s use of an unregistered carer, Ms Y, to care for Mr X, although he recognised the Council attempted to comply with Mr X’s wishes. He was, however, critical of the Council’s overly optimistic view of the speed with which the Police would conclude their investigation and the implications this had for the planning of Mr X’s care.
  5. Mr X’s representative told me Mr X thinks the Council should pay considerably more compensation.
  6. We have published guidance to explain how we calculate 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 and injustice.
  7. When the Ombudsman recommends a payment for distress, we only take account of avoidable distress that is the result of fault by the Council. A remedy payment for distress is often a modest sum of between £100 and £300.
  8. Faults by the Council had a considerable impact on Mr X between April 2018, when Mr F was arrested, and August 2018 when he returned to Mr F’s care. We call this injustice. It is clear this was an incredibly frustrating time for Mr X. His long-term foster placement was disrupted; he faced months of uncertainty about when, and even if, he would return to Mr F’s care; he spent months living in overcrowded accommodation without space of his own; he missed a holiday he had been looking forward to; and he made his own arrangements to stay with his family. His statement of complaint, and the independent investigator’s report, leave me in no doubt about the impact of these events on him. It is a tribute to Mr X that he has pursued his complaint with such determination.
  9. Taking all of these factors into account, I consider the Council’s offer of £1,600 to be an appropriate symbolic payment to acknowledge the impact of the Council’s faults on Mr X.

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Final decision

  1. I have ended my investigation. The Council made mistakes which caused Mr X injustice, but the Council has apologised and offered a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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