The Ombudsman's final decision
Summary: Mr & Mrs F complain about the way the Council's Local Authority Designated Officer considered allegations made about them as foster carers. I have ended my investigation into the Council until the outcome of a complaint against Authority 2 is known.
The complaint
Mr & Mrs F complain about the way the Council's Local Authority Designated Officer (LADO) considered allegations made about them as foster carers. In particular, that the Council: failed to provide sufficient oversight of a safeguarding investigation to ensure it was a fair and thorough process.
did not consider their representations or give them all the relevant information.
refused to provide a copy of the investigation report, denying them the opportunity to challenge the accuracy of the information held about them.
They say, as a result, the LADO’s recommendation to their employer (to refer them to the DBS) was not fair and unbiased, in breach of their Human Rights, and prejudiced their ability to prevent de-registration, effectively ending Mrs F’s career. It has also caused financial loss as they had to appeal to the DBS.
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 can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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 spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries, and: Working Together to Safeguard Children, Statutory Guidance, Department for Education 2018 West Midlands Child Protection and Safeguarding Procedures Mr F 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 Allegations against people who work with children Under the Children Act 1989, councils have a duty to safeguard children and promote their welfare. Under section 47 of this Act, if a child is suspected to be suffering, or likely to suffer, significant harm a council must make enquiries to decide if any action needs to be taken to safeguard that child or promote that child’s welfare.
Councils must appoint a designated officer (LADO) to oversee investigations into allegations against people who work with children in their area. A referral must be made to the LADO within one working day in respect of all cases in which it is alleged that a person who works with children has: behaved in a way that has harmed, or may have harmed a child; possibly committed a criminal offence against or related to a child; or behaved towards a child or children in a way that indicates they may pose a risk of harm to children.
The LADO is responsible for: Providing advice to employers.
Managing and overseeing cases.
Ensuring the child’s voice is heard and that they are safeguarded.
Ensuring there is a consistent, fair and thorough process for all adults working with children and young people against whom an allegation is made.
Monitoring the progress of cases to ensure they are dealt with as quickly as possible.
The West Midlands Procedures say, where required, the LADO will convene and chair a multi-agency evaluation discussion (also known as a Position of Trust or strategy meeting) within one working day of the employer becoming aware of the allegation. The meeting will (amongst other things) plan any investigation and ensure that the person who is the subject of the allegation is kept informed and supported.
The discussion should consider whether circumstances require the accused to be suspended from contact with children in order to inform the employer’s decision about this issue (including whether a foster carer’s approval should be suspended and the implications for other children in the placement).
The attendees at the evaluation discussion (or a further one following an investigation) will also determine whether the allegation is: Substantiated: there is sufficient identifiable evidence to prove the allegation.
False: there is sufficient evidence to disprove the allegation.
Malicious: there is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive.
Unsubstantiated: this is not the same as a false allegation. It means that there is insufficient evidence to either prove or disprove the allegation: the term therefore does not imply guilt or innocence.
If an allegation is substantiated, the LADO should discuss with the employer whether a referral should be made to the Disclosure and Barring Service (DBS). If an employer removes an individual from working with children because the person poses a risk of harm to children, the employer must make a referral to the DBS. It is an offence to fail to make a referral without good reason.
The employer should inform the accused person about the nature of the allegation, how enquiries will be conducted and the possible outcome. The accused member of staff should be treated fairly and honestly and helped to understand the concerns expressed and processes involved Foster carers Foster carers have to be fully assessed either by a council or an independent agency and are then approved by a fostering panel. The fostering panel makes recommendations to the employer about whether or not a person should be approved as a foster carer. If a panel recommends that a person should no longer be a foster carer, the employer can decide if it accepts that recommendation. If the agency accepts such a recommendation, the foster carer can appeal to the Independent Review Mechanism, which is an independent and external process.
What happened Mr & Mrs F live in the Council’s area. They were employed as foster carers by another local authority (Authority 2). In 2019 they started fostering Child X, who was placed with them by Authority 2.
In March 2020, Authority 2 asked the Council’s LADO to attend a strategy meeting to discuss an allegation against Mrs F in relation to Child X. The case records show that the Council told Authority 2 the LADO was not in the office so could not attend. Authority 2 went ahead with the meeting.
Authority 2 then told the Council’s LADO that Child X had been removed from Mr & Mrs F’s care, there would be an internal investigation by Authority 2 and the concerns amounted to an allegation of fabricated illness. Mr & Mrs F had denied all the allegations.
On 31 March, Authority 2 told the LADO it had received Mr & Mrs F’s written response to the allegations. The LADO asked for them but there was no response.
Authority 2 sent a report to the LADO on 27 April. This was a summary of its investigation. The report said there was evidence from professionals that indicated Child X would be at risk remaining in the placement. The decision had been made to remove Child X and a strategy meeting held. The strategy meeting had concluded the allegations were substantiated and recommended that Mr & Mrs F be referred to the fostering panel with a recommendation to deregister them. The report had been agreed by Authority 2’s LADO.
The Council’s LADO asked whether a DBS referral had been made as “if you are recommending back to panel for consideration of de-registering due to safeguarding concerns, a DBS referral must also be made”. The Council closed the case with the outcome of substantiated and “and request you complete a referral to DBS”.
Mr & Mrs F’s complaint Mr & Mrs F contacted the Council in September 2020. They had received a letter from Authority 2 which said the Council’s LADO had concluded the allegations were substantiated and had recommended they be referred to the fostering panel. Mr & Mrs F asked the LADO to consider their written response to the allegations.
The Council replied that its LADO had concluded there was sufficient information in Authority 2’s investigation report to make a decision.
Following the fostering panel, Mr & Mrs F were deregistered. They appealed to the IRM but this was not upheld. They made a formal complaint to the Council in April 2021.
In response, the Council said the LADO had been satisfied the evidential threshold was met to substantiate the allegations. Mr & Mrs F’s concerns that they were not involved in the investigation were for Authority 2 to consider. They should ask Authority 2 for its investigation report; this could not be shared by the Council as it was Authority 2’s report.
Mr & Mrs F came to the Ombudsman in July 2022, after they had complained to Authority 2. The complaint against Authority 2 is ongoing. They said that by "rubber-stamping" an unfair investigation and decision by Authority 2, the Council had given weight to the outcome, prejudicing their opportunities to prevent being de-registered.
My findings
The Ombudsman is not an appeal body. It is not my role to consider the allegations against Mr & Mrs F and determine whether or not they should have been substantiated. My role is to consider if the Council has followed the correct processes in its decision-making. If there was no fault in the decision-making, we cannot question the outcome or find a council at fault just because a person disagrees with its decision.
If there was any fault, we must consider how this has affected the complainants and whether injustice was caused. We may decide to end an investigation we have already started if we consider we cannot determine either fault or injustice.
As Mr & Mrs F live in the Council’s area, the Council’s LADO was responsible for overseeing any investigation into the allegations against them. This investigation was carried out by Authority 2 and Mr & Mrs F’s complaint about it is ongoing.
I have carefully considered whether the Council should have accepted the outcome of Authority 2’s investigation. But even if I determined that it should not, without knowing the outcome of the complaint against Authority 2, I cannot determine what injustice may have been caused to Mr & Mrs F.
To investigate any alleged fault by the Council, I would need evidence that it caused a significant injustice. At the moment, I cannot determine this because I do not know whether there was fault in Authority 2’s investigation which has led to an incorrect referral to the fostering panel.
I therefore intend to end my investigation into the Council until the outcome of the complaint against Authority 2 is known.
Mr & Mrs F also complained the Council refused to share Authority 2’s report with Mr & Mrs F. Mr & Mrs F can ask Authority 2 for the information it holds about them. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
Final decision
I have ended my investigation.
Investigator's decision on behalf of the Ombudsman