The Ombudsman's final decision
Summary: Ms X complained the Council failed to facilitate contact arrangements with her child, failed to provide her with information about whether her child would be adopted and failed to provide her with travel expenses. We found fault with the Council. The Council has already made changes to how it deals with Ms X moving forwards and provided a rebate for travel expenses incurred. The Council agreed to pay Ms X £1,000 for the distress and worry caused by its fault.
The complaint
Ms X complained the Council failed to facilitate contact arrangements between herself and her child, Y as outlined by a Court Order.
Ms X also complained the Council failed to provide her with suitable information leading her to worry her child would be adopted when this was not a consideration.
Additionally, Ms X complained the Council failed to provide her with information about how to claim travel expenses.
What I have investigated I have investigated the three points of complaint addressed by the Council in its Stage 2 complaint response.
I have not investigated the new points Ms X raised with the Council in 2022. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply (Local Government Act 1974, section 26(5)).
The Council has not had opportunity to address the new parts of the complaint in 2022 so I cannot investigate these issues.
I have also not investigated Ms X’s historic complaints about issues around the time of Y’s birth. 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) Ms X gave birth to Y in 2016 and the historic issues surrounding the Council taking Y into care relate to events in 2016 and 2017. Ms X had opportunity to complain to the Council and Ombudsman sooner about these matters and there are not good reasons to investigate these matters now.
The Ombudsman’s role and powers
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)
How I considered this complaint
I have considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Ms X provided comments on my draft decision which I considered before making my final decision.
What I found
The statutory complaints procedure for children’s complaints The Act 1989 established the requirement for local authorities to have a formal complaints procedure to deal primarily with complaints by and on behalf of children and young people.
This procedure is set out in the 2006 guidance Getting the Best from Complaints (the Guidance). The process has a three-stage structure: At stage one, a Council has 10 working days to respond to a complaint with a further 10 working days for more complex complaints. If a complainant is not satisfied, they can ask for a stage two investigation.
A stage 2 investigation should be completed, and a response sent within 25 working days. A stage two investigation timeframe starts when the person asks for it. In a complex complaint this may be extended to a maximum of 65 working days. Stage two investigations are overseen by an independent person.
A person can request a review panel at stage 3 within 20 working days of the stage 2 response. The Council has 30 working days to hold the review panel, 5 working days for the panel to issue its findings following by 15 working days for the Council to provide its response.
Ombudsman guidance on remedies The Ombudsman has published guidance on remedies. It notes we can recommend a financial payment as a symbolic payment to acknowledge the distress or difficulties complainants have been put through. It states our remedies are not intended to be punitive and we do not award compensation in the way a court might.
The Ombudsman can recommend a remedy for distress. However, the guidance is clear that it must be avoidable distress arising from fault. Our recommendation for a remedy needs to reflect all the circumstances, including the severity of the distress. The guidance sets out that a remedy payment for distress is often a moderate sum of between £100 and £300 but in severe, or prolonged, circumstances can be as high as £1000.
What happened Ms X gave birth to Y in 2016. The Council took Y into care under an interim care order which the courts turned into a full care order in 2017.
During the 2017 court hearing the court recognised the Council’s recommendation of four contact arrangements between Ms X and Y each year.
Ms X had face-to-face contacts with Y up to, and including, in December 2019.
On 23 March 2020, the UK went into a national lockdown because of the Covid-19 pandemic. Ms X’s face-to-face contact arrangement with Y stopped.
Ms X told the Council in August 2020 that she had now missed two contacts with Y. The Council told Y’s Kinship Foster Carers to facilitate face-time calls between Ms X and Y. This did not happen.
Ms X’s advocate complained to the Council on 29 July 2021. Ms X complained that: The Council had not adhered to the four contact arrangements each year for the last 19 months.
The Council was not supporting her travel expenses for contact arrangements.
She was unaware of whether there were plans in place for Y to be adopted.
The Council had not told her why it removed Y from her care.
The Council provided a Stage 1 complaint response to Ms X on 16 August 2021. The Council said: The delays in contact between Ms X and Y was because of the Covid-19 pandemic closing contact centres. It said it had tried to facilitate virtual and telephone contacts between Ms X and Y.
It had agreed to compensate Ms X for her travel expenses.
Adoption was not an option it was considering and it had not changed its position on this matter. The Council said it had discussed this previously with Ms X at review meetings.
It shared relevant information with Ms X during the court process about why it removed Y from Ms X’s care.
Ms X’s advocate made a formal request for a Stage 2 complaint response on 8 September 2021. Ms X said telephone contacts had not gone ahead. Ms X also said that idea that Y could be adopted had been concerning her since 2016 since the Council had not communicated that it would not be considering this option.
The Investigating Officer completed their Stage 2 investigation on 16 December 2021. The Investigating Officer upheld all three parts of Ms X’s complaint and found: The main impact on the lack of face-to-face contact between Ms X and Y since December 2019 was because of the Covid-19 pandemic.
While the lack of face-to-face contact was the result of the Covid-19 pandemic, the Council assumed virtual contact was taking place.
The Council should have been proactive in ensuring contact was taking place between Ms X and Y and should have sought to rearrange contacts when these failed.
The court papers in 2017 detailed the Council was recommending Kinship/Foster care to the courts and not adoption.
There was no commentary that suggested the Council was considering adoption.
There was no evidence the Council had communicated with Ms X in an effective manner to ensure she understood it was not pursing adoption. It had also not shared review minutes or social worker reports with Ms X to show this either.
The Council had failed to share relevant information with Ms X about claiming travel expenses.
Because of the lack of face-to-face contact since December 2019, the lack of travel expenses have not financially impacted Ms X.
The Council has put in place financial support moving forwards and reimbursed the cost of the December 2019 visit.
The Independent Person agreed with the Investigating Officer’s findings before the Council provided its Stage 2 complaint response to Ms X on 6 January 2022. The Council agreed with the findings of the Investigating Officer. The Council put in place the recommendations from the Stage 2 report to help facilitate and support contact moving forwards and apologised to Ms X.
Ms X’s advocate requested a Stage 3 complaint response and detailed concerns about the Council’s failure to backdate travel expenses. Ms X also raised new complaints with the Council. The Council told Ms X to approach the Local Government and Social Care Ombudsman with her complaint.
Analysis I have reviewed the stage two report completed by the Investigating officer. I am satisfied the stage two investigation considered all the relevant information. In doing so, the stage two investigation found fault with the Council on all three parts of Mrs X’s complaint. Therefore, I consider it appropriate to rely on the findings reached at stage two.
Fundamentally, the stage two investigation found the Council failed to facilitate contact arrangements between Ms X and Y for nearly two years. The stage two investigation also found the Council failed to provide Ms X with information about the fact it was not pursing adoption for Y and about travel expenses.
Contact arrangements The Council failed to ensure contact took place between Ms X and Y from December 2019 until October 2021.
While face-to-face contact was not possible during this time because of the Covid-19 pandemic, the Council should have facilitated virtual or telephone contact. Failing to ensure these contacts took place was fault. As outlined in the Stage 2 complaint response, the Council should have been proactive in ensuring these contacts took place.
The Council’s fault caused Ms X to have no contact with Y for 21 months, missing seven contact arrangements during this time. This lack of contact caused Ms X avoidable distress.
Adoption The Council failed to include Ms X in its decision-making process about Y since the court hearing in 2017. The court hearing in 2017 made it clear the Council’s recommendation was for Kinship/Foster care for Y and not for adoption.
However, since this point, the Council failed to provide Ms X with any information about whether it was considering adoption for Y. The fact the Council was not considering adoption is redundant since the impact on Ms X was her concern about whether the Council was. Failure of the Council to keep Ms X’s suitability informed is fault causing Ms X distress and worry.
The Ombudsman is limited in our powers to only investigate matters for 12 months back from when a person complains to us. Ms X could have brought this complaint to the Council or Ombudsman at any point since 2017 but did not complain to the Council until July 2021 or the Ombudsman until May 2022.
Our investigation into this matter is limited to 12 months before Ms X’s complaint to our service. This only enables us to consider the impact from May 2021 without good reason to go back further. I consider the lack of contact between Ms X and Y since March 2020 would have exacerbated Ms X’s concerns about adoption. As such, I consider this is good reason to consider the impact on Ms X since March 2020 caused by this fault.
From March 2020 until August 2021, when the Council confirmed with Ms X it was not seeking adoption for Y, Ms X experienced 16 months of avoidable distress and worry that Y may be adopted. The Council caused this distress and worry by failing to communicate with Ms X.
Travel expenses The Council failed to provide Ms X with information about claiming travel expenses. This was fault.
The Council has already addressed this fault through providing payments to Ms X for backdated travel expenses from June 2017 to December 2019. Had the Council not paid Ms X these travels expenses, it would have been questionable if the Ombudsman could have asked it to do so given the limitations on our jurisdiction to investigate matters over 12 months. In the circumstances, I am satisfied the Council took suitable action to address these backdated travel expenses.
Any payments before June 2017 fall far outside the Ombudsman’s jurisdiction to investigate as it is about matters more than five years ago.
The Council has put in place a system to pay for Ms X, and her support workers, train tickets for future contacts.
I do not consider the Council needs to take any further action to address this part of Ms X’s complaint.
Complaint handling The Council responded to Ms X’s Stage 1 complaint within the statutory timescales of a maximum of 20 working days.
However, the Council failed to meet the statutory timescales for the Stage 2 complaint response. Ms X sought a Stage 2 complaint on 8 September 2021 which set the maximum deadline for provision of the Stage 2 response as 8 December 2021. The Council failed to provide Ms X with the Stage 2 complaint response for a further 18 working days. This was fault. This fault caused inconvenience to Ms X.
The Council was within its rights to reject the Stage 3 complaint and direct Ms X to the Ombudsman. The Council did so in a suitable timescales and I do not find fault.
Conclusion
An injustice such as distress is difficult to remedy, so we often seek a symbolic amount to acknowledge the impact of fault on a complaint.
As detailed in paragraphs 15 and 16 the Ombudsman does not award compensation in the manner a court would and our awards for severe or prolonged distress tend to only rise as high as £1,000.
Having considered the circumstances of this case, in light of the Local Government Ombudsman remedies guidance, it is clear the Council put Ms X to avoidable distress and worry. The Council caused this distress and worry because of the lack of contact with Y and concerns Y would be adopted lasting between 16 and 21 months. The distress Ms X experienced was both prolonged and severe.
I consider a payment of £1,000 by the Council is appropriate in line with the Ombudsman’s guidance.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Pay Ms X £1,000 for the prolonged and severe distress and worry she experienced through the Council’s fault.
Final decision
There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.
Investigator's decision on behalf of the Ombudsman