Adoption and Fostering

Introduction

Councils have their own foster carers and may also place children in care with foster carers from independent agencies. We can look at these complaints. 

Faults in fostering and adoption mainly affect adoptive parents, foster carers and the children they care for. But they can also affect birth parents. All can lose confidence in the council to provide appropriate services or respond to their concerns.

Lack of appropriate support, including financial, can contribute to the breakdown of placements and may have a significant impact on a child, both in the short and long term.

The placing council is responsible for the management and supervision of the foster carers, and for paying fostering allowances. Faults in these areas can make caring for a child more difficult and contribute to a placement breaking down. We can also consider complaints about fault during the investigation of allegations or concerns about the quality of care.

Corrective action

• To carry out a standard of care investigation where concerns about a foster carer have not been dealt with properly.
• To provide support and/or training to the foster carer where this has not been offered.
• Review the foster carers’ suitability promptly where children have been removed, and the foster carers have not resigned.
• Ensure there are proper written records of meetings where significant decisions are made.
• Review cases in which other people might have been affected by the same fault.
• Where a foster carer has applied to another fostering agency, share the reference with it.

Quantifiable loss

• Pay backdated allowances which should have been paid, but for the fault.
• Reconsider the level of allowances and expenses and backdate if appropriate.

Symbolic payments

• Make a payment where there has been delay in making decisions causing avoidable distress, frustration, lost opportunity. Consider time and trouble, specifically in respect of injustice associated with flaws in complaint handling.
• Consider a symbolic payment for the child where they have suffered an injustice as a result of the fault we identified.

Service improvement

• Share the complaint outcome with the Chair of the Fostering Panel to support appropriate learning.
• Ensure future payments are in accordance with national minimum standards.
• Ensure procedures for referrals to Local Authority Designated Officer (LADO) are clear and known.

Context – aggravating and mitigating factors

• Given the range of aggravating factors it is usually difficult to conclude (on the balance of probabilities) fault is causal in any long-term difficulties a child might have, or that the outcome for a child would probably have been different, although the fault might be contributory.
• Complainants’ own actions can contribute to difficulties, for example not cooperating or taking part in assessments.

Remedy examples

Kinship carers and special guardianship 

Introduction

Kinship care (or family and friends’ care) is a general term for those looking after children who cannot be cared for by their parents. These carers are normally relatives, like grandparents, aunts, uncles, older siblings or a connected adult. 

Faults can include delay, as well as acting in haste without carrying out appropriate assessments or planning, leading to a placement breaking down. This can cause distress, magnified by the family connection. As always, we need to be careful to ensure we only remedy distress that is a consequence of fault. Although context is important, placement may well inevitably cause unavoidable distress that is not caused by the fault of a council.

Where we find fault, we also share our findings with Ofsted.

Corrective action

• Complete a Children Act 1989 section 20 assessment where there is dispute about whether child should be considered as looked after.
• Carry out an assessment or review the suitability of the placement and the child’s needs.
• Consider arrangements for contact with the birth family.
• Provide support, already agreed, under a Special Guardianship Order (SGO) care plan.
• Consider extra support to make up missed support.
• Make a face-to-face apology.
• Place stage two and three complaint reports on children’s social care files.
• Ensure records are accurate and complete.

Quantifiable loss

• Assess eligibility for a SGO allowance and backdate such payments, if eligible.
• Assess eligibility for a discretionary Child Arrangement Order (CAO) allowance and backdate, if eligible.
• Pay correct rate of allowance.
• Carry out a means test in line with the policy, statutory guidance, and the law.

Symbolic payments

• Consider whether the child should be made a separate symbolic payment for injustice.

Service improvement

• Review SGO and CAO policies to ensure they comply with legislation and guidance.
• Remind staff about, or offer training on, legislation regarding kinship care and SGO.
• Produce leaflet/update website information aimed at relatives to include information about care options, and the financial implications, when children cannot remain with their parents and relatives are considering offering long-term care.

Context – aggravating and mitigating factors

• Wider family members may be caused injustice by the fault.

Remedy examples

Looked After Children, and young people leaving care

Introduction

A child can become ‘looked after’ by a council voluntarily or by a court order. However the care occurs, the council should provide an environment in which the child can flourish. The council should consider the wishes and feelings of the child and their parents as far as is practicable when arranging care.

Assessing the injustice to the child or young person in this area can be difficult because the effects of faults on them may not be fully visible until the child is an adult.

The impact of faults also may be clouded by the effects of the actions of others (such as parents or relatives) and by the wider context affecting the child’s life. But, despite these difficulties, it is important to consider both the short-term injustice and any potential long-term injustice that is a consequence of identified faults to the child or young person.

Corrective action

• Provide the services, assessments, or reviews the child or young person should have received but was denied, because of identified fault.
• Consider providing extra services to make up for the loss caused by fault.
• Provide clear information about the support available to children in care and those leaving care.
• Place a copy of the decision statement on the child or young person’s care file, so they can understand in the future what has happened.

Quantifiable loss

• Backdate allowances to the carer or child or young person as appropriate.
• Provide education or training support in line with statutory guidance for care leavers.
• Provide financial support, bursaries and/or grants in line with statutory guidance and council policy.

Symbolic payments

• In cases of young people aged 16 years or older, consider whether it is best to pay all or some of a financial remedy direct to them, reflecting injustice caused to them by identified fault.
• Remedies for homelessness and lost education may also apply where these are the consequence of identified fault, particularly for a child leaving care.

Service improvement

• Updating local procedures to ensure better communication between council departments, for example, protocols for effective collaboration between housing and children’s social care departments to focus on the needs of the young person. Also providing staff training on implementing these when dealing with homeless 16 and 17-year-olds.
• Ensuring that local policies properly include family and friends carers in their fostering payment rates.
• Amending working procedures to ensure plans for children in care are properly kept under review using the statutory review process and avoiding children drifting in care without a clear plan.
• We might, in our enquiries using 26D powers, ask a council to review other similar cases, identifying people also affected by potential fault. We do not have the power to make this as a recommendation as it is neither to remedy injustice nor to prevent future injustice as a consequence of identified fault.

Context – aggravating and mitigating factors

Aggravating:

• Faults here primarily cause injustice to the children and young people involved but also sometimes the birth parents, family carers, foster carers and adoptive parents.

Mitigating:

• Services were offered in an accessible way and the young person (having capacity to make this decision) chose not to engage with them at the time.

Remedy examples

Child protection

Introduction

A council has a legal duty to investigate where it has reasonable cause to suspect that a child is suffering or at risk of suffering significant harm.

Families may come to us because they feel they are wrongly under investigation, or because of frustration resulting from the time taken to investigate, the separation of families whilst an investigation is underway and poor communication.

But the council’s primary responsibility is to safeguard the welfare of the child. Carrying out its duties is inevitably going to cause some distress to those involved. We can only remedy injustice arising from faults in the process. Where injustice is only minor, short lived and has been rectified (for example by correcting the record) we are unlikely to recommend further remedies.

On occasion we may also receive complaints from other referrers concerned about a child’s welfare or safety. We would not expect councils to provide detailed feedback to the referrer, but they should be informed of the outcome.

Where we find fault, we share our findings with Ofsted.

Corrective action

• We cannot ask for child protection records to be removed or altered. However, we can recommend the council places a note on the file that lists faults or inaccuracies, or makes clear the complainant’s dissent, where records are disputed. We can also recommend our final decision is placed on the file.
• Make a clear record of the outcome of the child protection investigation and inform other relevant agencies/referrers of the outcome.
• If inaccurate information has been shared with other agencies, ensure the council writes to those agencies to inform them of the error and provide accurate information.
• Ensure decisions are shared where appropriate with family members/ carers/ referrer.
• Where families have been separated for longer than necessary due to delay, specific action such as counselling may be more appropriate than a symbolic remedy payment for distress.
• In complaints involving children of sufficient maturity and understanding, we should take account of the child’s view of injustice and remedy, if this can be obtained without causing further distress.
• In cases of young people aged 16 years old or more, there may be grounds to consider paying all or some of a symbolic financial remedy direct to them.

Quantifiable loss

• If a family member is asked to leave home and there are significant delays in the process which concludes the family member was not a risk, then a payment could be considered for additional reasonable living expenses for the unnecessary period they were away from the family home, that was the consequence of fault.

Symbolic payments

• To the child – harm, risk of harm, distress because of failings in the protection process.
• To the family/carers – reflective of distress, frustration.

Service improvements

• Review procedures to ensure there are clear records of decision-making.
• Ensure records/minutes and outcomes of meetings are shared with families in a timely manner (where appropriate).
• Ensure timescales for safeguarding are met.
• Ensure councils provide clear and accessible information to those involved in child protection proceedings in a timely manner.
• Ensure councils have clear procedures to consider whether to exercise their discretion to investigate historic child protection/abuse complaints unless there are good reasons not to.
• Training for social workers and other relevant staff in the area where fault has been identified.
• Improve monitoring of recommendations or agreed actions to ensure they are carried out.

Context – aggravating and mitigating factors

• The actions of the parents/carers are very often the reason which lead to the council’s involvement. Any distress, frustration, outrage to them should be considered in light of this.
• Properly conducting child protection investigations can inevitably cause anxiety and we need to take care to only remedy injustice that is the consequence of identified fault.

Remedy examples

Statutory Children’s Complaints Procedure

Introduction

We have published a Guide for practitioners on our approach to complaints about the statutory procedure.

We sometimes find fault in the council’s decision to use the corporate complaints procedures when it should have used the statutory children’s procedure.

Once a council has accepted a statutory complaint, it should follow the process through all three stages, other than in the very specific circumstances in which an early referral can be made to us after stage two. These are set out in detail in our guide.

Complaints to us usually centre around delays in the process, the refusal by the council to move to stage two or three, or disagreement with the findings at any or all stages. We also sometimes get complaints that the independent person was not sufficiently independent of the council, or the investigating officer was connected with the matters complained about.

We will not generally re-investigate the complaints if we find the council carried out a robust, evidence-based investigation, that came to a finding on each complaint and where it made appropriate personal and service improvement recommendations (which it has carried out).

Councils will sometimes try to make an early referral to us which does not meet the criteria in our guide.

Corrective action

• If the council has used the corporate complaints procedure instead of the children’s statutory complaints procedure, we may ask the council to properly consider the complaints under the statutory procedure.
• Start the stage two or three investigation/review without delay, where a council is refusing or delaying in moving to stage two or three of the procedures.
• Carry out the recommendations or agreed actions as a result of the statutory complaints procedure.
• Carry out recommendations that fully remedy injustice (for instance having regard to our expectations set out in this guidance).
• If the outcome of the complaints procedure confirms there has been lost provision, the council should consider offering additional provision to make up for the loss (e.g. respite).

Quantifiable loss

• Make an appropriate payment when the family has paid for a service that the statutory complaints procedure later finds the council should have been providing. For example, private respite, support for a disabled child or s17 support. This should consider the fair costs of that service which is not necessarily what the parent has chosen to pay.

Symbolic payments

• We usually recommend a symbolic payment for delay (normally up to £500 depending on the severity of injustice) in the statutory process. We may also recommend the stage three panel consider a payment for any further delay.
• Where the council has failed to properly consider injustice to the parents/carers/young people, we may recommend a payment in line with our normal symbolic payments guidance and/or an apology.

Service improvements

• Remind relevant staff of the need to complete the children's statutory complaints procedure once started (and within the statutory timescales).
• Remind those involved in statutory children’s complaint investigations, and investigating officers, of the criteria for early referral to the Ombudsman.
• Provide its staff dealing with children's services complaints with training on the statutory children's complaints procedure.
• Introduce a monitoring system to ensure recommendations are completed.

Context – aggravating and mitigating factors

• Slow response/delays in requesting the next stage of the process from the parents/carers/young person may mitigate the level of injustice caused by identified fault.

Remedy examples

Special Educational Needs and Disabilities (SEND)

Introduction

Most children and young people will have their SEND needs met within early years settings, schools or colleges without any need for involvement from the council. This level of support is known as SEND support.

Children with more complex needs might need an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available.

We have issued three Focus Reports about SEND, the most recent being ‘Not going to plan? Ombudsman investigations into EHC plans two years on’ (October 2019). The reports give many case examples of common mistakes made by councils and details of recommendations made.

We have published casework policy guidance on the impact of national shortage of educational psychologists on our approach to remedying injustice caused by fault (service failure) in these cases.

Many key decisions around EHC assessments and their content carry a right of appeal to the SEND tribunal. Care needs to be taken when considering remedies that we do not stray into matters which have been, or could be, considered by the Tribunal.

Some of the most common failings we see relate to:

• delay in completing needs assessments and issuing a final EHC plan;
• failure to secure provision once an EHC plan has been finalised;
• failures to meet target dates for key stage transfers;
• failures or delay in completing annual reviews or issuing decisions to maintain, amend or cease to maintain the plan following the review; children without a school place or out of school with no alternative education or SEND provision arranged (see alternative provision section).

We also regularly see issues with school transport complaints where there is a SEN element. There are different requirements about school transport depending on the age of the child or young person. Young people of sixth form age (up to the age of 19) may be eligible for transport if this is considered necessary to facilitate attendance. Adult learners (those up to the age of 25 with an EHC Plan who started the programme of learning after their 19^th birthday) may also be eligible, if a council considers it necessary to facilitate attendance. Internal guidance for staff provides more details about the different requirements for different age groups. We have also published a Focus report All on board with a dedicated section on SEND complaints. 

The injustice stemming from these faults is often considerable and can impact on the parents/carers and wider family alongside the child and young person.

The remedies we recommend should consider any provision a council has arranged or offered, and the suitability of this. We may be able to reach a balance of probability view that additional provision would have been in place sooner if there had been no delay in needs assessments being completed or the annual review process being concluded. If so, we can recommend additional provision be arranged or ask for a symbolic payment if this is not possible or appropriate.

Where we have found fault, we also share our findings with Ofsted.

Corrective action

• Complete assessments and issue the final EHC plan without further delay.
• Arrange or complete the annual review process and ensure a decision to maintain, amend or cease to maintain is issued, with appeal rights explained.
• Ensure provision is secured and provide additional therapy/provision to address shortfalls (particularly relevant in speech and language therapy and occupational therapy).

Quantifiable loss

• The costs of tuition or educational materials if parents have sourced these due to no or unsuitable alternative provision being in place.
• In certain circumstances we may consider reimbursing the costs of private speech and language therapy (SALT) or occupational health (OH) reports to help inform needs assessments, but this will depend on the individual circumstances of a case and if a right of appeal has been used.
• The reasonable cost of transport that a council is obliged to provide but has failed to do so.

Symbolic payments

Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should  be based on the impact on the child and take account of factors such as:

• The severity of the child’s SEN as set out in their EHC plan.
• Any educational provision – full time or part time, without some or all of the specified support – that was made during the period.
• Whether additional provision can now remedy some or all of the loss.
• Whether the period concerned was a significant one for the child or young person’s school career – for example the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Lost or delayed right of appeal to tribunal.

In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT. The level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child or young person. Advice can be sought from the forum if needed. 

Service improvements

• Review commissioning arrangements to ensure these can meet timescales for needs assessments and provision of SALT and/or OT, once an EHC plan is finalised.
• Produce an action plan to demonstrate how the council will meet statutory timescales for needs assessments and annual reviews.
• Staff training to ensure they understand the legal framework and obligations in relation to the faults found.
• Review and update the Local Offer to ensure it accurately reflects options in the local area.
• If Annual Reviews are delegated to schools, ensure the council is aware of its duties in relation to this and has monitoring arrangements in place to identify potential failings at the earliest opportunity.

Context – aggravating and mitigating factors

• Has some provision been offered and refused?
• Did the school put in place support for a child or young person for whom there were delays in issuing the EHC plan?
• We may take into account the most recent Ofsted and CQC local area SEND inspection and action plan, and whether the service improvements we might have suggested are already being dealt with under any action plan following the inspection.

Remedy examples

School admissions and appeals

Introduction

School admissions

Fault in school admissions can cause significant injustice in the form of worry for parents. It may also lead to a child missing out on a school place or missing significant periods of education. Complaints about school admissions include complaints about in-year admissions, allocation of places under Fair Access Protocols (FAP), the operation of waiting lists and admission of children outside their normal age group.

In-Year admissions

Parents may apply for a place at any time to any school outside the normal admissions round. They may do so because they have moved into the area and the previous school is too far away, or because they want to change school for some other reason. Faults can include delay considering in-year applications or wrongly refusing to admit a child to a school where there is a vacancy.

Fair Access Protocol

The purpose of the FAP is to ensure that vulnerable children and those that are having difficulty securing a school place in-year, are allocated a school place as quickly as possible. Faults can include: failing to consider, or delay considering, an application under the FAP, failing to provide a formal refusal decision, not offering a right of appeal or considering an application under the FAP when it should have been dealt with under the normal admissions process.

Admission outside of normal age group (including requests for delayed entry to reception, sometimes referred to as summer-born children)

Parents may seek a school place for their child outside of their normal age group, for example if they have experienced problems or missed part of a year through ill health. Admission authorities must consider each request based on the circumstances of the case. Faults can include refusal to consider, or delay considering, an out of normal age group request, and failure to set out the reasons for refusal clearly in the decision letter.

Parents or guardians of a summer-born child (that is one born between 1 April and 31 August) have the option not to send their child to school until the September following their fifth birthday. This is a year after the point at which they could first have been admitted. However, it is the admission authority that must decide whether they are admitted into reception or year one. The school admissions code states “the admission authority must make a decision on the basis of the circumstances of the case and in the best interests of the child concerned.” Faults can include failing to consider the individual circumstances of each case or applying incorrect criteria when reaching its decision.

School appeals

Faults in appeals mean parents may not have had a fair hearing, leading to uncertainty about how a decision was reached.

Schools which are their own admission authority may delegate some, or all, of the appeals process to a local authority. However, the school will retain responsibility for ensuring that the correct processes are followed and will be responsible for remedying any injustice that arises from faults in the appeals process. 

We also see faults where requests for appeals in person are not properly considered or the need for reasonable adjustments during the appeal are not recognised or accommodated.

Corrective action

• Determine an application or offer an appeal without delay.
• Correctly reconsider a decision.
• Offer a fresh appeal with a new panel and clerk (in person where appropriate). This may need to correctly have regard to reasonable adjustments.

Quantifiable loss

• If a child is without a school place for any extended period, refer to the section below on ‘Education out of school’ for suitable remedy.

Symbolic payments

• We may consider a symbolic payment in line with our general guidance (set out above) for unreasonable delay or uncertainty and distress caused

Service improvement

• Review of procedures to ensure clear records of decision making are taken.
• Review of procedures to ensure decision letters give enough information for the recipient to understand the reasons for the decision.
• Review of policy to ensure this is in line with government guidance.
• Training for panel members and/or clerks to ensure they are aware of their responsibilities in accordance with the Appeal Code of Practice.

Context – aggravating and mitigating factors

• If a child was out of school altogether because of fault during the admissions process, then remedies in the ‘Education out of school’ section of this guidance may also apply.
• If a parent refuses to accept a suitable alternative school place this may be a mitigating factor for reducing the level of injustice.

Remedy example

School Transport

Introduction

Children of statutory school age (ages 5 to 16)

Faults can include errors in the council’s measurement of a walking route, and/ or failing to consider whether the route is safe. There can also be a failure to account for a child’s special educational needs, mobility, or disability if they live within the statutory walking distance. These can cause significant personal injustice.

We should also consider potential service improvement to prevent repetition where this appears to be a systemic failing likely to cause future injustice.

Post-16 Transport

Councils have a duty to publish a transport policy statement setting out the transport arrangements or financial help available for learners of sixth form age (age 16-19) and learners with Education, Health and Care (EHC) plans up to the age of 25 who started their programme of learning before their 19^th birthday.

The intention of the sixth form age transport duty is to ensure learners of sixth form age can access the education and training of their choice and, if support is requested, this is assessed and provided where necessary. Councils must exercise their power to provide transport or financial support reasonably, taking into account all relevant matters.

Councils also have a duty towards adult learners, in certain circumstances.

Appeals

Faults in the decision making or appeals process can mean the appeal was not fair. In some limited cases, we might be able to say that a child or young person has gone without the transport they should receive. Parents may have to pay for transport or the child or young person may not be able to attend their school or college. It can mean children or young people must walk to school on unsafe routes or have journeys that are too long.

Corrective action

• Determine an application or offer an appeal without delay.
• Properly reconsider a decision, for example reconsider the safety or distance of a route, the type of transport offered, or the need for a passenger assistant.
• Offer a fresh appeal with a new panel and clerk (in person where appropriate). This may need to correctly have regard to reasonable adjustments.

Quantifiable loss

• Refund transport or fuel costs caused as a consequence of the fault.

Symbolic payments

We may consider a symbolic payment for unreasonable delay or uncertainty and distress caused in line with our general guidance (above).

Service improvement

• Review local policy to ensure it is in line with legal duties and statutory guidance.
• Staff training, for example in decision making and taking account of all relevant factors.
• Review of decision letters to ensure they give clear reasons for the decisions made.

Context – aggravating and mitigating factors

If a child is out of school altogether because of a fault during the school transport application process, then remedies in the “Education out of School” section of this guidance may apply.

Remedy examples

Education out of school / Alternative provision

Introduction

When a child (of compulsory age) cannot go to school, the council must find out why. If there is a duty for it to act, it must make alternative arrangements to provide a suitable education. The council has a statutory duty under S19 of the Education Act 1996 to provide full-time education where a child cannot attend school because of exclusion, medical reasons, or ‘otherwise’. We issued a Focus Report: Out of school, out of sight? in July 2022 that sets out the common failings for children out of school.

Where we have investigated and found fault, we will recommend appropriate remedies. In assessing the remedy we should take account of any provision the council made or offered. This may not be full-time suitable education. But generally part-time provision should be on a temporary basis, for exceptional and documented reasons, and part of a programme to return the child to full-time education.

Corrective action

• Review the level and suitability of provision.
• Provide additional tuition or equipment.
• Identify a suitable school place and arrange admission, under the local Fair Access Protocol if necessary.

Quantifiable loss

• Reimburse the cost of educational materials, tuition, or childcare bought by parents or carers. This needs to consider costs that are a reasonable consequence of identified fault.

Symbolic payments

Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:

• the child’s special educational needs;
• any educational provision – full-time or part-time, without some or all of the specified support – that was made during the period; and
• whether additional provision can now remedy some or all of the loss.

In addition to educational provision, additional remedies may also be required for injustice caused by fault in other provision such as missing OT and SALT. The level of financial remedy is likely to be lower than that for loss of educational provision and will depend on the level of provision missed and the impact of this on the child or young person. Advice can be sought from the forum if needed. 

Service improvement

• Review policies and procedures to make sure the council retains sufficient oversight and control, particularly of any outsourced arrangements.

Context – aggravating and mitigating factors

Aggravating:

• Whether the period affected was a significant one in a child or young person’s school career – for example, the first year of compulsory education, the transfer to secondary school, or the period preparing for public exams.
• Impact on education, development and life-chances – particularly for children who are already educationally disadvantaged.
• Transition in from other council areas - lack of a school place may also mean a missed opportunity to form local friendships.

Mitigating:

• The child, young person or their parents have not fully engaged with provision that has been arranged and is suitable.
• The parent/carer has removed the child or young person from school.
• The child, young person or parent does not take up offers, arrangements or opportunities for provision offered by the council.
• The parent or carer arranges alternative provision themselves and then asks the council for reimbursement.

Remedy example