Summary: Mr X complained that the Council failed to carry out a proper risk assessment when it changed his daughter, D’s, care plan and stopped his visits in response to the COVID-19 pandemic. He said this resulted in D’s suicide attempt. We find that there was fault in the Council’s decision-making as it did not properly weigh up the risks of transmission of COVID-19 against the risks to D’s mental health. But we cannot say it led directly to D’s suicide attempt. The Council has agreed a suitable remedy.

The complaint

1. Mr X complains that the Council failed to carry out a proper risk assessment when changing his daughter’s care plan in response to the COVID-19 pandemic, resulting in his daughter’s suicide attempt. He is not satisfied with the outcome of the complaint investigated under the children’s social care complaints procedure. He says there is no evidence of appropriate risk assessments to support the conclusions of the independent investigation.

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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 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. 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 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)
5. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
6. The law sets out a three-stage procedure for councils to follow when looking at complaints about children’s social care services. The Council appoints an Independent Investigating Officer to investigate and an Independent Person to oversee the investigation at stage 2. If the complainant is not satisfied with the outcome they can ask for a stage 3 review by an independent panel. 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.

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How I considered this complaint

7. I discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance.
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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council or care provider followed the relevant legislation and guidance.
10. The Ombudsman also published a short guidance note, ‘Good Administrative Practice during the response to COVID 19’. This reminds councils that basic record keeping is vital during crisis working, and decision-making should be open and transparent even under emergency conditions. There should always be a clear audit trail of how and why decisions were made.

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What I found

Relevant law and guidance

Council’s duties towards Looked after Children

11. Councils have a duty to provide accommodation for any child in need in their area in certain circumstances including where the person who has been caring for the child is prevented, whether temporarily or permanently, and for whatever reason, from providing suitable accommodation or care. The child may be accommodated voluntarily where the parent requests it, or under a care order. I refer to this provision as ‘section 20’. (Children Act 1989 section 20)
12. A child accommodated in this way is a ‘Looked After Child’ (LAC). The parents retain parental responsibility for their child which means the council must inform and consult them when making decisions about the child’s care.
13. The council has a duty to safeguard and promote the child’s welfare. It must produce a care plan which is kept under review, usually at LAC Review meetings.
14. Under the Children and Social Work Act 2017 councils have a duty to act in the best interests of Looked after Children, and promote their physical and mental health and wellbeing.

Mental capacity, deprivation of liberty and best interests decision-making

15. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act and the Mental Capacity Act Code of Practice 2007 describe the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
16. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
17. Most of the Act applies to young people aged 16-17. The Code of Practice says when assessing the young person’s best interests, the person providing care or treatment must consult those involved in the young person’s care and anyone interested in their welfare, if it is practical and appropriate to do so. This may include the young person’s parents.
18. The deprivation of liberty safeguards (DoLS) provide protection for people who lack the capacity to decide about their accommodation where such arrangements amount to a deprivation of their liberty. The deprivation of liberty must be authorised by the authority making the care arrangements or by the Court of Protection, depending on the type of accommodation the person is in.

Impact of the COVID-10 pandemic

19. On 23 March 2020 England went into the first national lockdown in response to the COVID-19 pandemic. The government announced people had to stay at home and could not go out without ‘reasonable excuse’. It gave examples, which did not include visiting care homes or supported living accommodation. Social contact had to be kept to a minimum. Gatherings of more than two people from different households were not allowed. There were some exemptions, including to provide care or assistance to a vulnerable person.
20. The government also issued guidance for residential care homes and supported living accommodation in March about planning and preparing for potential outbreaks of COVID-19. These did not contain any guidance on visiting arrangements.
21. On 2 April there was further guidance on ‘Admission and care of residents during COVID-19 incident in a care home’. This said ”family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life”.
22. On 23 March 2020 schools in England closed to most pupils, apart from children of key workers and those who were vulnerable. The government issued ‘Coronavirus (COVID-19): guidance on vulnerable children and young people’ on the same day. This said vulnerable children included those who had a social worker and those with special educational needs who had an Education Health Care (EHC) Plan. The guidance said attending education settings was a known protective factor for children who had a social worker. The expectation was that these children would continue to attend as long as they did not have underlying health conditions. However this had to be balanced against the need to minimise social contact and prevent the transmission of COVID-19.
23. The government issued an open letter on 24 March asking councils and education providers to carry out risk assessments to decide whether children and young people considered vulnerable, including those with an EHC Plan, should continue to go to school or could have their needs safely met at home.
24. There was further guidance ‘Coronavirus (COVID-19): SEND risk assessment guidance’ issued on 19 April 2020 with more detailed advice about how to carry out the assessments. This included taking account of the view of the parents or carers and balancing various factors such as the potential health risks of the child going into school and the risk of them not receiving support under the EHC Plan.
25. There was also guidance for children’s social care services ‘Coronavirus (COVID-19): guidance for children’s social care services’ issued on 3 April which emphasised that for children with a social worker, safeguarding and promoting their welfare remained ‘of paramount importance’. It said local authorities should be conscious of reduced protective factors available to children and families and the increased stressors as a result of coronavirus (COVID-19) and try to ensure continuity and consistency of support where possible. It set out general principles for decision-making, which should be:
• child-centred - promoting children’s best interests
• risk-based - prioritising support and resources for children at greatest risk
• family focussed - harnessing the strengths in families and their communities
• evidence informed - ensuring decisions are proportionate and justified
• collaborative - working in partnership with parents and other professionals
• transparent - providing clarity and maintaining professional curiosity about a child’s wellbeing.
26. The Council produced its own guidance ‘Guidance for Children’s Social Care staff regarding family time/contact arrangements during Covid19’ which is dated 28 May 2020. It has also referred to a document, ‘Family Visits during Covid-19 Risk Management Plan’. I do not know if this is the same document or when it was issued.

What happened

27. The following is an account of the main events relevant to my investigation. It is not intended to cover everything that happened. I look at the key issues in dispute later in this statement.

Background

28. Mr X has a daughter, D, who was 17 years old at the time of the events covered in this complaint. D has significant mental health problems and a history of different placements, including detention under the Mental Health Act. She also has a history of self-harm and of contacting emergency services saying she had made attempts on her own life.
29. In 2019 the Council accommodated D under section 20 at Mr X’s request. The accommodation provided was a rented house with supervision and support from a care provider (the ‘Care Provider’). D was the sole resident, along with the care workers.
30. The Council applied to court for a DoLS Order to allow staff to place restrictions on D which it said would keep her safe in the community. The DoLs Order was granted in January 2020. It included:
• 3:1 supervision by staff during waking hours and when going out into the community;
• physical restraint if D was being a significant risk to herself or others;
• restricted access to use of the internet; and
• no access to social media.
31. Under D’s Pathway Plan (her care plan) staff supported her with independence skills and to take her to activities. The review of the plan in January 2020 notes that she had regular visits from her family which she looked forward to.
32. D’s mental health was overseen by the Child and Adolescent Mental Health Service (CAMHS) and she took several prescribed medications to help manage her anxiety. D had an EHC Plan and attended a school, School 1, part-time. School 1 is an independent specialist school for pupils with social, emotional and mental health problems.
33. Mr X made regular visits to see D at the placement. He was her main visitor.

Events from 23 March to 9 April 2020

34. When the country went into lockdown due to the COVID-19 pandemic on 23 March 2020, the Care Provider decided to put visits to the accommodation on hold. It wrote to Mr X on 24 March to tell him.
35. Also on 24 March School 1 told D’s social worker the School would be closing and sending work home to pupils by email. Staff would be working from home.
36. Mr X queried both of these decisions, saying D’s particular circumstances and the risk to her mental health had not been taken into account. He felt D should be allowed to attend school as she had an EHC Plan and that stopping his visits would have a detrimental impact on her mental health. He was in correspondence with D’s social worker, the Team Manager, the Care Provider and School 1 about these issues over the next two weeks.
37. During this time Mr X had contact with D through video-links. School 1 provided virtual lessons for D, kept in contact with her and sent work home for her.
38. On the evening of 4 April following an incident with D at her placement, D called 999 to say she had taken an overdose of her medication. There is some dispute and confusion about what she took and how much, and how she had access to the medication which was kept in a locked cabinet. D was taken to hospital by ambulance and returned to the placement the following day.
39. The Council arranged a meeting of professionals involved with D’s care to take place on 8 April to discuss what had happened. The Care Provider also started an internal investigation.
40. On 7 April D was admitted to hospital again following another suspected overdose. The hospital discharged her and sent her back home as it said there was no evidence she had taken an overdose.
41. Following legal advice on 8 April the Council decided visits to D should be reinstated. Mr X should be allowed to see D in the house and garden and to go out for walks. Mr and Mrs X attended a meeting the following day with various professionals involved in D’s care. Among other issues the meeting discussed arrangements for resuming contact. Mr X started visiting D again.

Complaint

42. Mr X complained to the Council that it had failed in its duty of care to D. He said it had failed to carry out proper risk assessments of the consequences of stopping all family visits and stopping D attending school. He said this led to D’s attempted suicide on 4 April.
43. The Council considered the complaint under the statutory children's social care complaints procedure. The conclusions of the stage 2 investigation and the stage 3 Review Panel, as far as relevant to this complaint, were:
• not to uphold the complaint about failure to carry out risk assessments; and
• to make no findings on what had led D to take the overdose on 4 April.
44. The stage 2 report and the Review Panel said there was evidence of regular assessments in relation to D’s care, including ‘ongoing risk evaluation’ through discussions with the Care Provider, professionals meetings, monthly incident reports and LAC reviews. The investigators and the Panel all agreed it was impossible to identify the exact motivation and reasons why D took the overdose.
45. The Review Panel found the stage 2 investigation to be thorough and detailed, including scrutiny of records and interviews with staff. It said it had arrived at a considered and evidenced outcome. It noted that the Independent Person confirmed the investigation was fair and thorough and agreed the conclusions were reasonable.
46. In response to the findings of the complaint investigation and review, the Council wrote to Mr X recognising the distress and impact on the whole family of the COVID-19 restrictions. It offered Mr X the opportunity to set out his experiences so the Council could share it with the service and reflect on it. It recognised there had been delays in the complaints process and offered Mr X £500 for his time and trouble in pursuing the complaint.
47. Mr X was not happy with the outcome. Part of his complaint to the Ombudsman was that he had not seen any evidence of risk assessments that weighed up the risk of transmission of COVID-19 against the impact on D’s mental health of stopping visits and school attendance. He said there was no evidence the Council had done anything more than follow blanket advice on COVID-19 safety without applying it to D’s particular circumstances.

Analysis –was there fault causing injustice?

48. I have considered the Council’s decision-making on the two key decisions Mr X complained about: the decision to stop in-person family visits to D, and the decision that D should not go to school. I have looked at the case records to see if they support the findings of the complaint investigation so far.

Visits

49. There was extensive and detailed email correspondence between Mr X, D’s social worker, the Team Manager and several members of staff from the Care Provider in the first few days following the lockdown announcement. The email exchanges continued into early April. The Council and Care Provider made their position clear that government guidance was that all non-essential activity had to be cancelled. The Care Provider said it did not want to say Mr X could not visit, but it was asking all families to keep visits to an absolute minimum because of risks they would pose to the visitors, staff, residents and all their families. It said it had been instructed social gathering in any form was not permitted and it must strongly advise against visiting.
50. Mr X accepted that some activities should not go ahead such as D’s sessions with the clinician from the Care Provider. But he repeatedly asked the Council and Care Provider not to take a simplistic approach to the government guidance but to balance it against best interest decisions on D’s care. He said he wanted to be satisfied that those looking after D had put some thought into this and made a considered decision in D’s best interests. He said he did not want D ending up back in hospital because her professional support network had failed to consider the issue.
51. In one email in response to Mr X on 24 March, the Care Provider said it recognised “his request for a personalised consideration of how this will affect [D] .. is a very reasonable request”. It said staff were carefully considering this and it would ask if they can consider a risk management plan by the end of the week “for circulation and feedback”. It said it understood the government restrictions being imposed meant best interest decisions were not required, but it agreed it needed a plan for how to manage the changes so as to have the least impact on D.
52. I have also seen a copy of the Care Provider’s ‘Covid risk management plan’ dated 24 March and signed the following day. This noted that although D was not in a category of people who were highly vulnerable if they caught COVD-19, there was a risk she would be unable to access treatment if she became unwell. So she needed to be supported to protect herself from catching the virus. The plan also said:

“There is a risk to [D] that without frequent contact with her family, she will become withdrawn and/or engage in a higher frequency of behaviour that challenges. There is a risk that as [D] will not be able to attend education, or her regular activities, she will engage in a higher frequency of behaviour that challenges.”

53. The monthly incident report for March noted that not having regular visits from her family had been difficult for D, although having online calls had reduced some of her anxiety.
54. There is evidence that staff worked with D to try and help her understand the risks of catching the virus and the reasons for the change in contact arrangements.
55. On 30 March the social worker wrote to Mr X to confirm the plan for contact with D during the lockdown period. He referred to national guidance on staying at home and also to day-to-day guidance the Council was using. I am not clear if he was referring to guidance the Council produced. The social worker confirmed all contact had to be ether virtually or by phone, not face-to-face, with some contact put on hold completely until further notice.
56. I have also seen a copy of a ‘COVID-19 plan’ by the social worker dated 1 April. This reported no physical health concerns, and that D was not particularly vulnerable to COVID-19. But it noted she had several mental health issues and anxieties that may be heightened in the current climate. Also because of the number of workers seeing her, she may be at higher risk of catching the virus. The plan said her “mental health will need to be monitored and managed appropriately, particularly if she doesn’t see her family for a considerable time”.
57. At the end of March Mr X reported to CAMHS that the loss of D’s ‘protective factors’ such as family visits was having a “big impact on her fragile mental health”. By 8 April, when reviewing the visiting arrangements, the Care Provider noted the detrimental impact on D of the lack of visits. The April monthly incident report noted a reduction in the number of incidents but a significant increase in their severity. It recorded that D had “struggled to cope with the change surrounding her” including the restrictions around education and parental visits. It noted the “huge impact” of these changes in her life.
58. Having reviewed the evidence, my view is that the Council’s initial response to the lockdown announcement and the ‘stay at home’ guidance was understandable. I cannot find fault in stopping visits at the outset in response to the national guidance. The Council, Care Provider and individuals and families had to react immediately to a new situation with little guidance available other than to avoid mixing with other people and not to go out at all unless absolutely essential. In the early stages there was no national guidance on visits to supported living placements and the Council’s own guidance was not yet available. The Council and Care Provider had to consider the safety of their own staff as well as people in their care.
59. However very soon after the restrictions were imposed, Mr X raised what the Care Provider recognised was a reasonable concern about applying blanket rules, and the need to consider the impact on D’s mental health. Mr X still had parental responsibility and the Council had a duty to consider D’s welfare and her best interests. It should have taken decisions on her best interests in consultation with Mr and Mrs X as D’s parents. These were not easy decisions to make. I do not underestimate the task the Council faced. It is clear from several documents that the Council and Care Provider identified risks to D’s mental health from the lack of contact with her family. But I have seen no evidence that they considered these risks in making the decision on the contact arrangements. There is no record that the Council balanced the risk of infection and the need to follow government guidance on social distancing against the risks to D’s mental health. Nor is there evidence that the Council consulted Mr and Mrs X when taking the decision. The Care Provider said it would share a risk management plan with Mr X but it did not do so.
60. If the Council was unsure about the correct balance to strike, it should have obtained legal advice earlier. Once it did seek legal advice this led straightaway to a decision to reinstate the visits. Had the Council done so sooner it seems likely it would have decided earlier to allow visits to continue, with appropriate COVID-19 related restrictions in place. There is nothing in the legal advice that leads me to think it would have been different if it had been obtained earlier.
61. So, based on the evidence I have seen, I do not agree with the findings of the stage 2 investigation and the stage 3 review that the Council carried out appropriate risk assessments. It did not take into account best interest decision-making and the need to involve D’s parents when it reached its conclusions, as it should have done. I find that the Council was at fault in failing to review its initial decision on stopping visits and make a properly considered decision weighing up the risks.
62. However it is not possible to say that these failings led directly to D taking an overdose on 4 April. I agree with the findings of the independent investigation that it is impossible to say what D’s motivation and reasons were. There are too many factors to consider. D has complex mental health problems and similar incidents had occurred before. Also, there were other events in the lead-up to the incident. For example D’s mobile phone had been removed, she was having problems in a relationship with another young person, other activities had stopped, and her main support worker was not available to her as she had to self-isolate at home. The independent investigator did not interview D as part of the stage 2 investigation, with Mr X’s agreement, because of the distress it might cause her. It is not possible to enter her mind and know what prompted the incident.
63. Nevertheless the Council’s failure to show it had made a fully considered decision weighing up the risks caused a great deal of distress and anxiety for Mr X. He is still left in doubt about whether the incident could have been avoided. The lack of visits also had an impact on D, although other factors already mentioned would also have contributed to her distress.

School attendance

64. From the start of the March 2020 lockdown the government advised councils and education providers to carry out risk assessment to assess whether vulnerable children should continue to attend school or should receive their education at home. Given D’s Looked after Child status, her mental health difficulties and treatment and the fact that she had an EHC Plan, she clearly fell into the category of vulnerable pupil. The detailed guidance on how to conduct the risk assessments did not appear until mid-April, after the period I am considering. However the government had made it clear from the outset that assessments should be made.
65. In this case School 1 told the Council it was closing the school. There is evidence in the records that the School assessed the risks of D coming into school. In correspondence between Mr X and School 1 on 26 March the School confirmed it had carried out a risk assessment of all its pupils. It referred to the particular difficulties of managing the COVID-19 related risks with D because of her need for 2:1 support and the multiple contacts she was having with staff supporting her.
66. I cannot directly investigate the actions of School 1 in carrying out the risk assessment. I can look at how the Council considered the matter. I have not seen any evidence that the Council asked the school for its risk assessment. The Council has not been able to produce a copy of such a risk assessment.
67. As with the decision on visiting, I consider that the Council has not been able to show that it properly weighed up the risks of D attending school against the risks to her mental health. It did not involve Mr and Mrs X in the decision. However I cannot say it would have made a difference to the outcome if it had acted in this way. School 1 decided to close. It is an independent school and the Council would not have been able to direct it to remain open. I do not know if the Council would have been able to make alternative arrangements at the beginning of lockdown for D to receive her education at another education placement. In common with many other schools at the time School 1 was looking into re-opening after Easter.

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Agreed action

68. The Council has agreed that to remedy the injustice to Mr X and D it will take the following action within one month of the decision on this complaint:
• apologise to Mr X and D for the distress and anxiety caused by the failings I have identified;
• pay Mr X and D £500 each to recognise the distress and anxiety caused.
69. In recommending this figure I have considered the Ombudsman’s remedies guidelines. I have taken account of the fact that while visits were stopped for a relatively short time, the distress was significant.
70. Although the situation is different now with the availability of a vaccine and reduced incidence of COVID-19, a new wave of the virus or other public health emergencies are still possible. I therefore recommended that the Council remind relevant social care staff and agencies providing services on behalf of the Council to Looked after Children of the need to make considered balanced risk assessment decisions when applying national public health guidance. They should take account of the individual circumstances of the young person, consider their best interests and include parents in decision-making where they have parental responsibility. The Council should ensure there is a record of the decision. The Council agreed to this recommendation. It should take the agreed action within one month.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have found that the Council was at fault in failing to fully consider the balance of risks when deciding to stop family visits to Mr X’s daughter. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
73. 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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Investigator's decision on behalf of the Ombudsman