The Ombudsman's final decision
Summary: Mrs K complained about the support the Council provided her before it ended a fostering placement of a child in her care, and it failed to consider her views. She also said it made untrue accusations against her. As a result, Mrs K said she experienced distress and had a loss of income. We found no fault by the Council. It had put support in place for Mrs K and considered her and professionals’ views before it made its decisions. It based its views on the information it received and found child X was being caused harm due to their disagreement.
The complaint
The complainant, whom I shall refer to as Mrs K, complained about the Council’s handling of its concerns about a foster child (child X) in her care. She said it: wrongly removed child X from her care; failed to provide her and her foster child with enough support, consider their views, and assess his needs; treated her unfairly, lied and made accusations which amounted to defamation and slander of her character; and wrongly refused to provide a copy of an independent Special Guardianship Order assessment.
As a result, Mrs K said she and her family experienced distress, defamation of their character and a loss of earnings.
What I have and have not investigated I have investigated Mrs K’s complaint about how the Council handled her fostering placement, the support it provided and its decision to end the placement.
I have not investigated the Council’s duties in relation to child X and the potential; injustice he experienced. This is because he has made a separate complaint to the Council in his own right.
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) 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) 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) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) 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
As part of my investigation, I have: considered Mrs K’s complaint and the Council’s responses; discussed the complaint with Mrs K and considered the information she provided; considered the information the Council provided in response to my enquiries; and considered the relevant law and guidance to the complaint.
Mrs K and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Corporate parent The Children and Social Work Act 2017 say when a child or a young person comes into the care of a local authority, or is under 25 and was looked after by the local authority for at least 13 weeks after their 14th birthday, the authority becomes their corporate parent. This means the local authority should: act in the best interest and promote the physical and mental health and wellbeing of this children or young people; encourage them to express their views, wishes and feelings, and take them into account, which promoting high aspirations and trying to secure the best outcomes for them; make sure they have access to services; make sure they are safe, with stable home lives, relationships and education or work; and prepare them for adulthood and independent living.
Duties towards looked after children The statutory guidance ‘Promoting the Education of looked after children and previously looked after children says local authorities have a duty under the Children Act 1989 to safeguard and promote the welfare of a child looked after by them. This includes: a specific duty to promote the child’s educational achievement, wherever they live or are educated. The authority must, therefore, give particular attention to the educational implications of any decision about the welfare of those children; a Local authority must appoint at least one person to discharge the Council’s duty to promote the child’s educational achievement. The Children and Families Act 2014 placed a duty on local authorities to appoint a virtual school head (VSH), which is an officer employed to make sure that the council’s duty to promote the educational achievement of its looked-after children; all looked-after children should have a Personal Education Plan (PEP) which is part of the child’s care plan; a suitable care placement and the child’s social worker should do everything possible to minimise disruption to the child’s education; an arranging a school placement, the child’s social worker (working with people around the child) should seek a school or other education setting that is best suited for the child’s needs. This could be a maintained school, academy, independent school. It might also, in some cases be appropriate to place a child in a special school or alternative provision; and a school placement must mean a full-time place and based on what any good parent would want for their child. The child’s wishes and feelings should be taken into account.
The guidance has a clear emphasis on the importance of ensuring a looked-after child has a suitable and effective education in an appropriate school setting. While some alternative provision may in some circumstances be considered, this would be the exception and for a time limited period until another setting can be found.
What happened In 2018 the Council became the corporate parent for a child (child X).
In late 2018 the Council placed child X with Mrs K and her family under a fostering placement with a long-term care plan. The intention was for child X to remain with Mrs K until he was an adult, unless he returned to his parents. The Council put in place: a Personal Education Plan (PEP) for child X, an Education, Health and Care Plan (EHCP) which set out his special educational needs; child X was placed on roll in a school; for its Virtual School Head to work with Mrs K and child X; a social worker and an Independent Reviewing Officer (IRO) were allocated to child X and Mrs K’s fostering arrangement; for child X to continue to have contact with his parents through agreed visits, which Mrs K supported throughout; and paid Mrs K for the fostering placement through her fostering agency.
Mrs K and the Council agreed the placement worked well, and child X was settled and happy.
Following the outbreak of COVID-19 in 2020, Mrs K had concerns about her, her family’s, and child X’s safety. She decided to home-school her own children and raised concerns about child X returning to School for the start of the academic term in 2020.
Child X attended school in September 2020 and the school found him to be happy and doing well.
In October 2020 Mrs K raised issues about child X being bullied in school. She also made a request to the Council to keep him at home due to children with COVID-19 in his school.
The Council refused Mrs K’s request and she suggested she may have to end the fostering arrangement.
The Council arranged for Signs of Stability meetings to discuss the concerns which COVID-19 and the bullying concerns caused. These meetings were attended by Mrs K and the professionals around child X, including his school and the Council.
In early 2021 a national lockdown was in place due to COVID-19. This meant schools were closed, although some children could attend school. Mrs K told the Council she would refuse to send child X to school. The Council said it reluctantly agreed child X should not attend school during this time.
The Council’s Social Worker explained the Council’s role as a corporate parent of child X and the guidance it must follow to ensure child X receives an appropriate education and attends school.
Before the lockdown ended Mrs K requested from child X not to return to school until after Easter 2021. However, following a further Signs of Stability meeting, the Council decided child X had to return to school when it opened in March 2021.
Between March 2021 and July 2021 Mrs K’s disagreement with the Council and other professionals increased. She believed child X should not attend school due to COVID-19 and bullying concerns. However, the Council and its VSH, the school and the IRO believed it was best for child X to attend school.
Further Signs of Stability meetings took place, including the ongoing Personal Education Plan meetings and the Council visited child X. The views of each party were made clear: Mrs K’s views remained unchanged. She believed child X should not attend school due to the impact COVID-19 and bullying had on his emotional wellbeing; child X had some concern about bullying and COVID-19. He was wearing a mask in school which he said increased the bullying, and he was missing out on Mrs K’s family events when he was at school. It was also reported he had been asked by Mrs K to shower when he returned home and had to sit further away on the dinner table. Overall, he was concerned about the position he was in to attend school and the concerns this caused Mrs K and the family; and the Council and VHS, IRO, and the School believed it was in child X’s best interest to attend school, as this could best meet his needs and outcomes in his EHCP.
Child X attended school throughout the 2020/21 academic year, with the exception of the national lockdown period and the final two days of the Summer term.
In Summer 2021 Mrs K told the Council she had not sent child X to school the two final days of term due to a local outbreak of COVID-19. She also said she could not guarantee she would send child X to school for the start of the 2021/22 academic year, and he may not return for some time.
The Council considered Mrs K’s views, and consulted with the professionals around child X. This did not change its view, and it gave Mrs K a final opportunity to provide a reassurance for child X’s attendance at school.
When Mrs K again told the Council she could not guarantee child X would attend school, the Council decided to end his fostering placement with Mrs K and seek an alternative placement.
Mrs K applied to court for a Special Guardianship Order (SGO), but by the time the court could consider the case, child X had already been moved from Mrs K’s care. Mrs K withdrew her application.
Mrs K’s complaint In late July 2021, Mrs K complained about the breakdown in her fostering placement for child X, who was happy and settled in their care for almost three years. She said the views and wishes of child X should be heard, and he wished to remain in her care. She also said he should have an advocate, she felt unsupported, unfairly treated and discriminated against.
In response the Council said: child X had been referred for advocacy support; it was willing to reconsider its decision to end the placement, if Mrs K would allow him to attend school in September 2021 and work with its Support for Success Team to ensure his emotional needs were met; it had considered child X’s views, but it had concerns he felt he was treated differently compared with Mrs K’s own children who were home-schooled; and it, the school, and the IRO are of the view there had been a deterioration of child X’s emotional wellbeing which has been impacted by Mrs K’s own anxiety about COVID-19. Their view was it was a legal requirement and in child X’s best interest to attend school.
In early 2022 Mrs K complained again to the Council. She raised concerns about how it had considered child X’s wishes, needs and their request for therapy and assessments for him since early 2021 and how its decision had impacted child X. She also said: she had no support or information from the Council; it had treated her unfairly and she had been wrongly accused of emotional abuse of child X. This was in relation to the ongoing contact with child X after the placement had ended which she said was investigated by the Local Authority Designated Officer (LADO). She said this amounted to defamation and slander of her character; she had asked for a copy of its SGO Assessment, but had still not received a copy; and she had been put on hold as foster carers with her fostering agency due to the Council’s decision to end child X’s placement, which had resulted in a loss of income.
Mrs K’s complaint was considered under the three stages of the children’s statutory complaints process, which included a panel considering the complaint in Summer 2022. Overall, the panel did not uphold Mrs K’s complaint, but it found the had been a delay in disclosing the SGO assessment with her. It made some recommendations for the Council to explain the LADO involvement, for a restorative meeting to take place between Mrs K and for the Council to explain why it had not shared the SGO Assessment.
In its complaint responses, the Council told Mrs K it had a duty to ensure child X was in school, as set out in his EHCP, which it found was in his best interest. It found concerns about bullying were satisfactorily address by the school. It also explained: its decision to end the placement was made at senior level within the Council, and professionals around child X shared its view that he should attend his School; professionals had not shared her view an autism assessment was necessary and explained why some therapy support was not put in place; child X had not been told he could not have contact with Mrs K. However, it found he needed time to settle in his new placement and start school before contact continued, but its social worker kept in contact with Mrs K; Mrs K had not been diagnosed with anxiety, but she had concerns about COVID-19 which it had tried to understand; it acknowledged Mrs K had no fostering income after the placement ended, but it had not blocked her from fostering. She should therefore address her concerns to her fostering agency; it had consulted with the LADO due to its concerns about the impact Mrs K’s concerns about COVID-19 and distrust in the Council had on child X. However, it had not proceeded to make a referral; and an independent social worker was carrying out the SGO Assessment, which had since been shared with Mrs K.
Mrs K asked the Ombudsman to consider her complaint about the Council’s handling of child X’s fostering placement, and how this had impacted her and her family.
Analysis and findings The Council is the corporate parent of child X. It therefore had duties towards child X to ensure his wellbeing and educational needs were met.
Part of Mrs K’s complaint relates to the impact the Council’s decisions had on child X. I cannot consider this as child X has made a complaint in his own right with the help of an advocate. I can only consider whether there was fault in how the Council handled Mrs K’s fostering placement towards her and her family.
Ending the fostering placement The Council had a duty towards Mrs K to ensure she had support available, and to consider her concerns and wishes when child X was in her care, and before it ended child X’s fostering placement.
It is clear the Council and the professionals around child X disagreed with Mrs K’s concerns and how to best ensure child X’s wellbeing and educational needs were met. However, based on the evidence available, I found the Council: ensured professionals around Mrs K and child X was in place, which included an allocated social worker, the VHS, the IRO, and a SENCO from child X’s school; ongoing communication and meetings took place with Mrs K to ensure the placement was successful; arranged for Signs of Stability meetings to take place with the aim of resolving issues, when Mrs K and the Council had concerns about the placement since late 2020; considered Mrs K’s concerns about COVID-19 and bullying of child X in school; considered Mrs K’s request for an autism assessment of child X, but found this was not deemed necessary; and considered Mrs K’s request for therapy support for child X and offered for some support to be put in place.
I acknowledge Mrs K disagreed with the decisions the Council made and the views of the professionals. However, as the Council considered her views and concerns, I have not found it at fault.
Did the Council treat Mrs K unfairly?
Mrs K said the Council treated her unfairly, lied and made wrong accusations. She believes this amounted to slander and defamation of her character.
It is clear Mrs K and the Council disagreed about how to best ensure child X’s wellbeing. Mrs K felt it was best for child X to be home-schooled due to COVID-19 and bullying at school.
The Council, and professionals, found child X should be in school, which could best support his education and special educational needs set out in his EHCP. It told Mrs K it believed the disagreement about where to educate child X was causing harm to child X.
I have not seen evidence the Council lied, or treated Mrs K unfairly. It considered the information it received from her, child X, the school and professionals around him to reach its views. While Mrs K felt she was not harming child X, it is clear from the evidence, he was caught in the middle between the Council’s and Mrs K’s disagreement, which unsettled him. I have therefore not found the Council’s statements on the impact on child X to be untrue.
LADO and fostering placements I have not found the Council at fault for consulting with the LADO when Mrs K was unwilling to confirm child X would attend school from September 2021, and it decided to end the fostering placement. This is because it had ongoing concerns about the impact its disagreement with Mrs K had on child X, it was therefore entitled to reach its view a consultation with the LADO was necessary, and I cannot criticise such decisions.
I understand this did not lead to a referral and no further investigation therefore took place, but it may still have impacted Mrs K’s fostering agency’s decision to suspend fostering arrangements with her.
I acknowledge Mrs K has had a loss of fostering income as her fostering agency decided to suspend her from fostering. However, the Council did not block Mrs K from receiving fostering placements and, in line with normal practice, it shared the reasons for why it had decided to end child X’s placement with Mrs K. It was thereafter up to the agency whether it gave Mrs K any further fostering placements. Any concerns Mrs K has about lost income should therefore be directed to her fostering agency, and she had the right to ask the Independent Review Mechanism to review her fostering agency’s decisions.
SGO Assessment While I acknowledge the was a delay by the Council to share its SGO Assessment with Mrs K, I cannot consider information and documents which has been prepared or considered by a court as part of an application or appeal to court. Even if the court did not consider the matter, or the application was later withdrawn.
I cannot therefore make a finding on the injustice the Council’s delay caused Mrs K on this matter.
Final decision
I have completed my investigation with a finding of no fault by the Council.
Investigator's decision on behalf of the Ombudsman