Summary: Mr F complained that the Council failed to disclose important information to them about the birth mother of their adopted daughter, which caused uncertainty about the contact arrangements he had agreed to. We found the complaints process had taken too long but was very thorough and we considered the financial remedy should be higher. The Council has agreed to increase the payment to £250 and take steps to tighten up the operation of the complaints process for the future.

The complaint

1. Mr F complained that Gateshead Metropolitan Borough Council (the Council) failed to disclose to Mr and Mrs F information it held about the drug use of their daughter’s (G’s) birth mother. This caused them distress and uncertainty that their daughter was potentially put at risk of significant harm when they agreed to unsupervised contact.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

Child in need

6. Section 17 of the Children Act 1989 says councils must safeguard and promote the welfare of children within their area who are in need.
7. A child is in need if:
• they are unlikely to achieve or maintain a reasonable standard of health or development unless the council provides support;
• their health or development is likely to be significantly impaired unless the council provides support; or
• they are disabled

Child protection

8. Under section 47 of the Children Act 1989, where a council has reasonable cause to suspect that a child in their area is suffering or is likely to suffer significant harm, it has a duty to make such enquiries as it considers necessary to decide whether to take any action to safeguard or promote the child’s welfare.

Statutory children’s complaints procedure

9. 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.
10. The first stage of the procedure is local resolution. Councils have up to 20 working days to respond.
11. 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.
12. 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.
13. 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

14. Mr and Mrs F’s daughter G is adopted. In 2020 she had been in contact with her birth mother (Ms H) and other relatives without Mr and Mrs F’s knowledge. When they discovered the visits, they contacted the Council for advice and support around managing any risks to G.
15. The Council started a child in need assessment. As part of the assessment the social worker spoke to Ms H who said she was an ex-drug user and was no longer in an abusive relationship. She agreed to have no further contact with G until the assessments and checks were completed.
16. The social worker also contacted the drugs service worker who said that Ms H reported using illegal drugs in September 2019 in addition to methadone but in January 2020 she was only taking methadone which was confirmed by a negative urine test.
17. A new social worker took over the case in May 2020 and obtained an update from Ms H’s mental health worker. They confirmed Ms H had been clean from class A drugs for at least a year and off cannabis for over a year. She had done well in turning her life around and was making positive changes, staying away for negative family influences.
18. The assessment was completed in June 2020. The assessment said that Ms H had not used drugs for 18 months and had made significant changes to her lifestyle. In evaluating the risk to G, the social worker noted that Ms H had ‘made great strides in getting support for her mental health and drug use’. The social worker concluded G was not experiencing significant harm and in order to ensure there was no future risk of harm they would make a child in need plan to allow a further assessment of Ms H and create a plan in conjunction with Mr and Mrs F for G to have contact.
19. The child in need plan specified two supervised visits per week. Contact went well and progressed to unsupervised visits in July 2020.
20. In December 2020 Ms H went into hospital and in March 2021 she died unexpectedly.

Complaint

21. In December 2021, after reading the coroner’s report into Ms H’s death, Mr F complained to the Council that it had not disclosed full information to him about Ms H’s drug usage and that this has put G at risk of harm. He said the report contained information from Ms H’s GP saying that she used heroin in July 2019 so she had not been free from drugs for 18 months as stated in the assessment. He said if he had known this at the time, he would not have allowed unsupervised contact to take place.
22. The Council replied to Mr F on 18 January 2022. It said it was reasonable for the social worker to rely on the information given by Ms H’s drugs worker and mental health worker.
23. Mr F was unhappy with the response. He complained again in January 2022 that the social worker should not have relied on the mental health worker’s view as he was not her drug worker and was not qualified to say she had been clean from Class A drugs for at least 18 months. He also complained that the Council did not inform them that Ms H had disengaged from her methadone recovery programme which was in GP records. He wanted an apology for the incorrect information and wanted to make a claim against the Council for the injustice caused to him, Mrs F and G.
24. After speaking to Mr F on 6 May 2022, the Council sent another stage one response on 17 May 2022. It did not uphold Mr F’s complaint concluding that G had not been placed at risk or potential risk of harm by the Council’s actions.
25. By this point Mr F had complained to our office and the Council agreed to consider the matter at stage two of the statutory complaints procedure.
26. The stage two report was completed on 24 August 2022. The Investigating Officer (IO) said:

“Whilst investigating this complaint, I am assured and ultimately confident that at no point was child placed at risk of sig harm by [Ms H] and that throughout their involvement [the social worker] acted in child’s best interests”.

27. The IO upheld the complaint that the Council had not shared all the relevant information it held regarding Ms H’s methadone use. They said the social worker had spoken to the right people, but the assessment did not contain all the relevant information. The IO was not convinced that different decisions would have been made or that the child was put at risk of significant harm. But they considered there was an over-optimistic risk analysis by the professionals involved in the case which meant Mr and Mrs F were not fully aware of the situation and were not supported in understanding how methadone impacted Ms H’s daily living. The IO recommended the Council send a letter of apology and put all the complaint information on the case file.
28. The Council sent an adjudication letter to Mr and Mrs F on 3 October 2022 saying:

I do accept that had this information been included, it would have allowed you a greater opportunity to fully consider whether it was appropriate for [G’s] contact with [Ms H] to take place.

29. Mr F escalated the complaint to stage three and the Review Panel heard the case on 14 November 2022. They endorsed the findings of the stage two investigation but made some additional recommendations including that the Council should consider a financial remedy for Mr and Mrs F.
30. The Council offered Mr and Mrs F £100.
31. Mr F complained to us on 27 November 2022. He said the Council should have fully upheld the complaint that G had been placed at risk of significant harm allowing her unsupervised contact with Ms H despite knowing she was on a methadone programme and had been taking heroin in 2019.

Analysis

32. As I have explained above it is not my role to reinvestigate the complaint unless I consider the investigation was flawed.
33. Leaving aside the time taken to consider the complaint through the process which I will deal with below, I have not found fault with the complaint investigation. The stage two investigation interviewed Mr and Mrs F, considered all the relevant case records and interviewed all the relevant officers involved in the case. The stage three review in particular, was very thorough: it fully explored all the issues and recommended a financial remedy for the uncertainty caused by the failure to disclose Ms H’s methadone use. It considered why the drug worker was not interviewed and concluded that even if they had been, the Council held all the relevant information, so a further interview would not have altered the position. The fault was the failure to disclose this fact to Mr and Mrs F.
34. The Review Panel also fully considered the question of whether G was put at risk of significant harm by the failure to disclose the information. It concluded that the Council properly reached the reasonable decision that she was not at risk of significant harm and obtaining any more information on Ms H’s drug use would not have altered this view.
35. I agree the failure to disclose the information about the methadone use was fault which created uncertainty for Mr and Mrs F: it denied them the opportunity to learn more about Ms H’s situation and take that into account in their decisions around G’s contact with Ms H.

Delay

36. In terms of delay, I note the Council responded to Mr F’s complaint at stage one on two occasions, with a five month gap between the responses. This was fault and was not in accordance with the statutory complaints procedure.
37. The stage two was started on 17 May 2022 when the Council agreed to escalate the complaints. The Council completed stage two on 3 October 2022 when it sent its adjudication letter, taking approximately 20 weeks, seven weeks outside of the timescales in the guidance. The stage three review panel took place within the required timeframe. The whole process took around ten months rather than six. This was fault which created frustration for Mr and Mrs F.

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Agreed action

38. I welcomed the Council’s offer of £100 to Mr and Mrs F along with the letter of apology. However, I considered a higher remedy was appropriate to recognise the uncertainty created by the failure to disclose relevant information to them.
39. So, within one month of the date of my final decision, I recommended the Council:
• increases the payment to Mr F to £250 and
• considers if it can take any steps to tighten up the operation of the complaints procedure particularly at stage one, to ensure the process is completed within the required timescales.
40. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Final decision

41. I consider this is a proportionate way of putting right the injustice caused to Mr and Mrs F and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman