The Ombudsman's final decision
Summary: There was delay by the Council in applying to court to end a care order which caused avoidable uncertainty and distress. The Council has taken some action to remedy the injustice to Mr X and his son Y and to improve its services, but it needs to make the additional payments set out in this statement.
The complaint
Mr X complained for his son Y and in his own right Doncaster Metropolitan Borough Council (the Council) delayed starting legal proceedings to end Mr Y’s care order. They said this caused avoidable uncertainty, anxiety and time and trouble
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) The Council told Mr X it intended to start court proceedings in May 2019. Mr X did not complain to us until February 2022 and so his complaint his late. However, I have investigated it because Mr X had periods of ill-health and was in hospital in 2020. Also, our service was closed between March and July 2020 and council services were also exceptionally pressurised because of COVID-19.
We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) Mr X’s complaint is about the Council’s delay in processing the Court application and therefore separable from the court process.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) Mr X could have applied to court himself. However, he told us a solicitor advised he needed Council documents which were not available, and that he would not receive legal aid. I have investigated as it was not reasonable for him to go to court. He believed the Council was going to make the application, he was ill and acted on his solicitor’s advice.
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) 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) Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
How I considered this complaint
I considered Mr X’s complaint, the Council’s responses and documents set out in this statement. I discussed the complaint with him. I interviewed the chair of the Council’s Permanence Panel by phone.
Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant law, policy and procedures A care order allows a council to take a child into care. The court grants a care order if there is a risk of significant harm. A child, parent, council, or any other person with parental responsibility can make an application to discharge a care order. The applicant must show the court there is a significant change in circumstances since the care order was granted.
The Council set up a Permanence Panel in September 2021. It works to improve the long-term permanence prospects for every child, whether returning to family, adoption, a connected person or long-term fostering. The chair of the Permanence Panel told me it: tracks cases and produces weekly and monthly reports. It holds case meetings for managers and service leaders to provide updates. Identified cases are assigned key task deadlines.
shares learning through seminars and workshops. It has also secured funding and recruited three new staff members across departments to improve service efficiency.
has identified reasons for delay including a fault with the case management system which was affecting case progression.
What happened Mr X and Mr Y’s mother are separated. The Council got a care order in 2017 for Mr Y and one of his siblings. Mr Y was unhappy with his foster placement and often returned to stay with Mr X.
In 2019, the Council assessed the risk of Mr Y remaining in care and noted there were no concerns about Mr X’s parenting. It agreed Mr Y could stay with Mr X. The Council agreed in May 2019 that it would apply to court to end the care order after getting approval from its legal department.
Mr X’s complaint to the Council Mr X told us he tried to contact the Council many times about ending the care order, but he could not get an explanation for the delay. So, he complained to the Council in December 2021. The Council responded in January 2022 saying: The complaint was out of time (over 12 months old), but it accepted there was a delay in making the court application.
A Placement with Parent report was necessary before the court application which had impacted progress.
The report was complete, so the Legal Gateway Panel (LGP) would approve the application and then the legal department would make the court application.
The remaining steps would be completed without delay, but the actual hearing date was not in its control.
It would keep Mr X updated at each stage.
Mr X was not happy with the first response and so asked for the complaint to be dealt with at the second stage. The Council refused. But it said it would pay Mr X £200 for his time and trouble and for any welfare benefits he had missed out on. Mr X accepted the payments and complained to us.
Mr Y’s complaint to the Council Mr Y also made a separate complaint to the Council in February 2022. The Council’s response accepted there had been delay and offered Mr Y £500.
The Council also noted events since May 2019 including Mr Y’s mother objecting to the court application, two changes in Mr Y’s placement while Mr X was in hospital, the Council losing one assessment and the Council not sticking to agreed deadlines for completing further assessments.
Events since the complaint to us The Panel Chair told us the court ended Mr Y’s care order in July 2022.
Was there fault and if so, did this cause injustice?
The Council already accepted a delay in issuing the court application following the decision in May 2019. This was fault causing avoidable frustration, uncertainty and distress for Mr X and Mr Y. It has apologised and made payments. This is a partial remedy for the injustice.
I note events took place after May 2019 which were not all within the Council’s control, like Mr Y moving in with a relative because Mr X was in hospital. However, there was significant delay between these events and delay in completing fresh assessments when the case was allowed to drift which was fault. Papers were lost which was also fault.
Agreed action
I am satisfied the Council has made improvements to its service by introducing the Permanence Panel which closely monitors progress of cases. This will minimise the risk of recurrence of the delays I have identified in this case. So, I am not recommending any further changes to improve the service.
The Council has taken some action to remedy the injustice by making Mr X and Y payments and apologising. It has also taken the action necessary to end the care order. However, I do not consider the payments already made are enough to reflect the injustice. The Council has agreed, within one month of my final decision, to make further payments of £300 for Mr X and £250 for Mr Y which more fully reflect their avoidable anxiety and uncertainty.
Final decision
There was delay by the Council in applying to court to end a care order which caused avoidable uncertainty and distress. The Council has taken some action to remedy the injustice to Mr X and Y and to improve its services to minimise delay, but it needs to make additional payments set out in this statement. It has agreed to make these payments.
I have completed my investigation.
Investigator's decision on behalf of the Ombudsman