The Ombudsman's final decision
Summary: Mrs W complains the Council has prevented her from having contact with her grandson (Child A) who is a looked after child. She also says the Council’s communications with her have been poor and that presents she left for Child A have not been passed on. There was no fault in the way the Council has sought to facilitate contact between Mrs W and Child A. The level of alleged injustice relating to the presents Mrs W left for Child A is insufficient to warrant us investigating that issue. We did however identify some fault in the way the Council communicated with Mrs W which caused her significant uncertainty and distress. The Council has agreed to our recommendations to remedy this.
The complaint
The complainant, who I refer to as Mrs W, is making a complaint in relation to the Council’s Children’s Services Team. Mrs W’s grandson (Child A) is a Looked after Child (LAC). Specifically, Mrs W alleges the following: The Council has wrongly denied her access to Child A whom she used to be a fulltime carer for. Mrs W believes she should have been able to have unsupervised contact with Child A, though the Council insisted on supervised contact only.
Once the Council agreed to consider unsupervised contact, Mrs W says the Children’s Services Team failed to contact her or return her emails and calls to make suitable arrangements.
The Council has failed to pass on presents to Child A when she left these for him at his school.
The Council has failed to respond to her concerns within a reasonable timeframe and that its complaints process has been poor.
In summary, Mrs W says the Council has prevented her from seeing Child A which has caused her significant distress, uncertainty and hardship. She also says this has had a detrimental impact on Child A’s wellbeing. As a desired outcome, Mrs W wants the Council to conduct a full and independent review of the issues and to be held accountable for the alleged failings.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 or has not done. (Local Government Act 1974, sections 26B and 34D, as amended).
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. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) 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)
How I considered this complaint
I have read Mrs W’s complaint to the Ombudsman and Council. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Mrs W and the Council to comment on a draft of my decision. All comment received were fully considered before a final decision was made in this case.
My findings
Background and legislative framework Looked after child A Looked after Child (LAC) is any child who is subject to a care order or accommodated away from their family by a local authority under section 20 of Children Act 1989. The accommodation can be voluntary or by care order. The child becomes looked after when the local authority has accommodated them for a continuous period of longer than 24 hours.
Before a local authority starts to look after a child, and while it is looking after the child, it must, as far as reasonably practicable, obtain the wishes and feelings of the child and their parents. The local authority should be able to evidence its decision to look after a child, showing it has had regard to the wishes and feelings of the child and any other “relevant people” as well as the child’s religious persuasion, racial origin and cultural and linguistic background.
The local authority has a duty under section 22 of Children Act 1989: to safeguard and promote the child’s welfare (including the child’s educational achievement for which the local authority must appoint a person whose responsibility it is to discharge this duty) to make such services available for children who are cared for by their own parents as the local authority considers to be reasonable in the child’s case.
To achieve these duties all looked after children must have a care plan which it must keep under regular review. The government has issued guidance on care planning. Care plans must include a long-term plan for the child, details of the placement and why it was chosen, any court orders and the name of the Independent Reviewing Officer (IRO). Further, it must include contact details of parents and any other relevant adults. It must contain a personal health plan, personal education plan and details of any contingency planning.
The Children and Social Work Act 2017 brought in new requirements for looked after children. From 1 April 2018, local authorities were required to have regard to the seven principles of corporate parenting when carrying out their functions in respect of looked after children. The principles say the local authority must: act in the best interests, and promote the physical and mental health and wellbeing, of those children and young people encourage those children and young people to express their views, wishes and feelings consider the views, wishes and feelings of those children and young people help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners promote high aspirations, and seek to secure the best outcomes, for those children and young people promote safety and stability in those children’s home lives, relationships and education or work prepare those children and young people for adulthood and independent living LAC reviews These reviews oversee fulfilling the care plan, oversee the child’s progress and decide any necessary changes. There are prescribed maximum intervals for LAC reviews. The first review must be undertaken within 20 days of the child first becoming looked after. The second review within three months of that and the third and later reviews within six months of the previous review. These are maximum timescales and meetings should be held as often as necessary. Each child’s case should be under constant review. Local authorities should also have their own guidance for carrying out LAC reviews.
Parental responsibility Parents keep their parental responsibility even when a child is accommodated under a care order. They have a right to be told and consulted about all decisions, usually as part of a looked after child review.
Chronology of events In May 2020, the Council initiated care proceedings relating to Child A. It sought to remove Child A from the care of Mrs W. Later that month, Mrs W withdrew her application for a Special Guardianship Order and discharge of Care Order. As to contact arrangements, the Family Court heard: “The Local Authority and the Guardian acknowledge the attachment between Child A and his Grandmother and recognise that she is a very important figure in his life. The Local Authority are committed to involving the Grandmother in Child A’s life and informing her of his progress. If Arthur is agreeable then the Grandmother will be invited to attend the LAC reviews.
“The Local Authority proposed that contact take place on a fortnightly basis. The Court considered that contact should be reviewed on a monthly basis. The Grandmother would like the have Child A for extended periods of contact such as weekend staying contact and short holidays but recognises this must be in line with Child A’s developing needs.”
Immediately following the proceedings, Child A became a LAC. Due to the COVID-19 pandemic, contact between Mrs W and Child A was limited to telephone calls. However, Mrs W says this was insufficient and the Council prevented her from speaking with Child A on a regular basis.
Until December 2020, the Council says Mrs W played an important role in Child A’s life. However, the Council says that at this point in time there was an incident during a contact visit which undermined Child A’s emotional wellbeing. The Council subsequently decided that all contact arrangement between Child A and Mrs W must be on a supervised basis. The Council says that Mrs W then refused to engage with any contact arrangements.
There was subsequently a prolounged period of no contact between Mrs W and the Council. Mrs W said the Council would get in touch with her about future contact arrangements in December 2020, though no contact was ever facilitated. There was contact in May 2021 between Mrs W and the Council. She says this was in relation to arranging contact with Child A. Mrs W says the Council did not respond to her emails or phone calls.
In September 2021, Child A’s new social worker emailed Mrs W. The social worker explained there had been difficulties contacting Mrs W due to out-of-date contact information. She added that Child A wanted to see Mrs W and welcomed Mrs W getting in touch to set up contact arrangements.
In October 2021, Mrs W responded dissatisfied to be receiving a response to issues she raised in May 2021. Mrs W expressed that she was only interested in receiving unsupervised contact with Mrs W and that if the Council had suggestions around this, it should forward her any proposals.
In November 2021, the Council’s social worker responded seeking to arrange a supervised video meeting between Child A and Mrs W. The social worker proposed this happening in early December 2021 and explained this could be used as an opportunity to discuss future contact arrangements. There was subsequently a number of emails exchanged between Mrs W. Specifically, Mrs W was not confirming whether she was agreeable to the request and questioned what the purpose of the video call and the underlying aims and objectives.
In early December 2021, Mrs W confirmed her telephone contact number and agreed for this to be passed on to Child A’s foster family for the purposes of video call. This was arranged for two days later for one hour. Following the video call, Mrs W wrote to the social worker to say this went well from her perspective and she explained she wanted further contact.
Four days later, the Council’s social worker responded to Mrs W saying she needed to check with her Team Manager regarding future contact arrangements. She explained this was because Child A was reported to have been defiant following his video call with Mrs W.
In January 2022, the Council sent Mrs W its stage two response to her complaint. The response provided no consideration of Mrs W’s complaint and was limited to explaining she could now bring her complaint to the LGSCO.
In April 2022, Child A’s IRO emailed Mrs R to explained that Child A did not wish to have contact with his family. The IRO explained that if Child A changes his mind, she would be happy to meet with Mrs W and the social worker to discuss contact arrangements. To date, Child A’s wishes remain unchanged. The Council has confirmed any contact arrangements Child A were to have with Mrs W must be supervised given the passage of time since their last contact.
My assessment
Time limitations By law, I cannot investigate any complaint made more than 12 months of the complainant becoming aware of the problem, unless there are good reasons to exercise discretion. Part of Mrs W’s complaint is that in March 2018, there was a relationship breakdown between her and the social worker allocated to support her and Child A. Mrs W explains there were serious issues in maintaining contact with the social worker and there were instances of a breach of confidentiality. In addition, Mrs W has requested the Council carry out a full review of the support offered to her since March 2018. The failure to do so forms part of her complaint.
I asked Mrs W why she did not complaint to the LGSCO sooner in respect of issues which occurred more than four years ago. In response, Mrs W has presented credible reasons relating to her health which support her not being able to complain at the time. However, it is my view these are not good enough reasons to support me exercising my discretion. In relation to events taking place prior to May 2020, I consider the following: There would be difficulties in establishing the material facts with reasonable confidence and gathering sufficient evidence to reach a sound judgement.
We cannot apply current standards, guidance, or professional expectations to historical situations. It is therefore likely to be more difficult to reach a firm and fair conclusion on whether there was maladministration in Mrs W’s case.
It is likely to be more difficult to achieve a meaningful remedy in Mrs W’s case, given the length of time that has already passed, the difficulty in establishing causality over longer time periods, and changes in the situation of the parties.
For these reasons, I am limiting my investigation to events occurring since May 2020 which coincides with the date Child A became a LAC. For problems occurring earlier than this, I do not consider that there is a realistic prospect of reaching a sound, fair, and meaningful decision. I consider Paragraph 4 applies and we have no legal jurisdiction to investigate these matters.
Contact arrangements It is Mrs W’s position that since Child A became a LAC, she has been denied access to Child A by the Council. She believes she should be allowed frequent unsupervised contact with Child A. Firstly, it is important to consider the outcome of the Family Court proceedings in May 2020 and any Order made relating to contact arrangements between Mrs W and Child A. I have done so and consider that the Family Court made no such Order and that contact arrangements were left for agreement between Mrs W and the Council, in accordance with Child A’s wishes and best interests. That said, the Council proposed that contact take place on a fortnightly basis. The Court considered that contact should be reviewed on a monthly basis. There was no suggestion made whether Mrs W should have supervised or unsupervised contact with Child A. In my view, such arrangements are to be made by the Council subject to the wishes and best interests of Child A.
On this basis, it is not my role to question the merits of the Council’s decision absent procedural failings or service failure (see Paragraph 7). Whether Child A’s contact with Mrs W should be supervised or unsupervised is a matter for Council social workers exercising their professional judgement. However, I would expect the Council to have well founded and substantive reasons based on accurate information in order to make this judgement. I requested information from the Council to understand this more fully and my assessment of this is as follows.
Following the conclusion of the proceedings, family time arrangements were put in place on a weekly basis through telephone and video calls. This Council has made the point that during this time, there were strict guidelines and law in place regarding social distancing due to the Covid-19 pandemic. I accept this made in person contact between Mrs W and Child A not possible. The evidence I have reviewed shows Mrs W understood this and that there were a number of telephone calls between Mrs W and Child. However, in his first LAC review following his move into Council accommodation, Child A expressed mixed feelings about having contact with Mrs W. It was therefore decided by the Council that Child A should be supported with his family time through supervision.
Mrs W has explained that immediately following the Family Court proceedings in May 2020, she was asked to stop telephoning to speak with Child A. She also says the Council failed to give her weekly reports on his progress. However, I see no evidence Mrs W complained to the Council in relation to these issues. The law says I can only accept a complaint where the Council has first been afforded a reasonable opportunity to investigate and provide a response. This part of the complaint is therefore premature and I cannot investigate. Moreover, on the issue of being provided weekly reports, Mrs W has no parental responsibility for Child A and I cannot therefore make a finding she should have been provided with information and personal details which concern Child A and his progress.
I do however note there were some an in person contact between Mrs W and Child A in August 2020. The Council reported that the contact had been a positive experience for all and that a further visit was arranged for October 2020. However, Child A expressed that he wished for his social worker to be present. There was a further supervised visit at Mrs W’s home in December 2020 and it is this visit which appears central to the complaint. I have reviewed the case record for the contact visit. This describes some hostility concerning whether the contact should be supervised or not. The Council’s records note Mrs W being undermining towards the social worker present by calling her Child A’s “bodyguard”. Mrs W also stated she was unprepared to have the visits supervised going forward. My finding is that Mrs W’s wishes were not line with Child A’s wishes as the evidence shows he wanted supervised contact.
I found a discussion subsequently took place between Council professionals who decided family time between Mrs W and Child A should be fully supervised and that a schedule of expectations be implemented to govern the conduct of those visits. As I understand, Mrs W refused to sign the schedule of expectations and declined supervised family visits. This commenced a period of disengagement between Mrs W and the Council. I read Child A’s LAC review (July 2021). On the subject of family time, Child A expressed he was not concerned with seeing Mrs W and that he understood that the reason visits were not going ahead were due to Mrs W’s opposition to these being supervised. This being said, there was a time in May 2021 where Child A expressed he wished to see Mrs W. I have provided an assessment of this particular matter later in this statement.
In September 2021, Child A expressed he would like to see Mrs W and his new social worker contacted her to attempt to facilitate this. I have reviewed the email correspondence between Mrs W and the social worker. In my view, the Council’s emails to Mrs W were professional and geared towards promoting contact in a way which was consistent with Child A’s wishes and best interests. I found Mrs W’s responses to not be particularly helpful as they were focussed on her own grievances with the Council as opposed to promoting Child A’s needs. In particular, Mrs W’s correspondence was, at times, argumentative and it demonstrated an unwilling on her part to engage with the Council relating to supervised contact with Child A.
In December 2021, Mrs W held a telephone call with Child A. It was reported that following the call, Child A had been defiant. The Council subsequently tried to set up a meeting with Mrs W to discuss family time contact arrangements with Child A. Mrs W stated she was only willing to meet with Child A’s social worker and refused other professionals from participating. These professionals were involved in Child A’s case and have a responsibility towards Child A in promoting his best interests. I consider their attendance was reasonable. Numerous correspondence was exchanged between Mrs W and the Council which ultimately was unsuccessful in securing agreements as to future arrangements.
I have read the Council’s latest LAC review for Child A (March 2022). This states that Child A has expressed that, at present, he does not want contact with Mrs W.
In summary, I found no evidence of the Council denying Mrs W contact with Child A. The Council’s LAC reviews and email correspondence show a clear emphasis on promoting contact between the two. Importantly, Mrs W is not entitled to unsupervised contact with Child A. Whether this were to happen is subject to Child A’s wishes and best interests. I have considered Child A's representations and these show he has, at time, shown mixed feelings towards seeing Mrs W. He also requested his contact with Mrs W be supervised.
I have also considered the Council’s consideration of Mrs W’s willingness to work with the Council to promote Child A’s needs. I am inclined to agree with the Council that Mrs W has put up unnecessary barriers to facilitating her achieving a positive relationship with Child A through contact. I believe the Council’s decision for supervised contact is consistent with Child A’s wishes and is based on maintaining his wellbeing and emotional stability. The Council has also considered the period Child A has not seen Mrs W for and that there would need to be work completed with them both to rebuild their relationship. I consider the Council has made a thorough assessment to form a decision as to contact arrangements. As I have not determined fault, I have no legal jurisdiction to question the merits of the decisions made.
Presents not being passed on Around the 2020 Christmas period, Mrs W bought Child A some presents and left these for him at his school. As I understand, Mrs W gave no notice to the Council’s social workers she had done this and did not make arrangements for these to be passed to Child A. The Council said the wrapped presents had been left in big bags which nobody would have known about due to no arrangements being made to pass these on. The Council also said the presents remained wrapped up and it was felt that before these were given to Child A they had to be opened and checked. The Council said the school attempted to speak with Mrs W about the presents, however contact was unsuccessful. I have seen evidence the Council sought to contact Mrs W to discuss this issue. I found the presents were shared with Child A in school in July 2021 after they had been checked.
In my view, this issue could have been better arranged and facilitated. I believe Mrs W could have contacted the Council to organise this better. I also feel the Council could have contacted Mrs W directly instead of going through the school. I fully understand why this matter caused some upset to Mrs W. However, my role is to identify fault which has caused a serious and personal injustice. That means I must be satisfied any alleged fault has caused serious loss, harm or distress to Mrs W. The presents Mrs W left for Child A were passed on, albeit there was some delay. Child A is not the complainant in this case and so I will not consider any injustice to him. Though upsetting for Mrs W, I am not satisfied the level of injustice suffered warrants further investigation, regardless of fault.
Communication As stated above, I cannot investigate any issues where these have not, in the first instance, been subject to a complaint to the Council. In addition, I will not investigate matters which occurred before May 2020 due to the passage of time. However, as part of my investigation, I have reviewed the available communications between Mrs W and the Council which are not subject to our jurisdictional constraints. This is because Mrs W has stated her attempts to make contact in May 2021 were ignored.
As I understand, this followed Child A expressing that he would like to see Mrs W, albeit supervised. The Council said that telephone calls were made to Mrs W, though these were not responded to. However, the Council later acknowledge that Mrs W had expressed a firm wish to only be contacted by email so to maintain an accurate records of events. I am therefore of the view that contacting Mrs W by telephone was not the most appropriate method in the circumstances.
In any event, I have seen emails from Mrs W to the Council engaging with the Council on issue of contact arrangements in May 2021. In particular, Mrs W explained that she was available to meet to discuss contact arrangements, though only on an unsupervised basis. The Council’s Team Manager however felt that as Child A’s social worker was leaving and he would be allocated a new social worker, it would be better to wait until then to facilitate contact arrangements. I have seen no evidence from the Council that this approach was explained to Mrs W which supports her version of events that she was not contacted further in relation to discuss and arrange contact with Child A. The Council did not make contact with Mrs W again until September 2021.
I therefore accept Mrs W’s version of events and find fault by the Council for failing to respond to her on the issue of contact arrangements. In my view, this would have justifiably resulted in uncertainty and deep upset to Mrs W who reasonably felt that she would be having contact with Child A. However, as Mrs W was only willing to engage in unsupervised contact, I cannot make a finding that contact would have been permitted. As identified earlier, contact arrangements would have only taken place on a supervised basis in accordance with the wishes of Child A and the Council’s best interest considerations it deemed appropriate.
As stated earlier, the Council contacted Mrs W in September 2021 to organise family time with Child A following him expressing a wish to do so. The Council did respond to Mrs W, though not always in the manner which Mrs W wanted. I have commented earlier that I do not consider Mrs W’s emails were, at all times, particularly helpful. I also believe there was an expectation from Mrs W that the Council would respond one the same working day she made an enquiry. At points, there were some delays in the Council’s responses. However, its communications with Mrs W were particularly challenging which required the social worker to seek additional information and guidance. In addition, Mrs W was making requests for information which I do not consider was necessary which in turn added to the process.
Agreed action
To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions by no later 20 November 2022: Provide Mrs W a written apology which acknowledges the fault and injustice identified in this statement.
Pay Mrs W £300 to serve as an acknowledgement of the uncertainty and distress she justifiability suffered due to Council’s communication failures.
Final decision
I fully acknowledge the special relationship between Mrs W and Child A. It is also clear from the evidence I have reviewed that Mrs W cares deeply for Child A and wants to promote his needs and best interests. However, the evidence does not support the position that the Council has denied Mrs W access to Child A. Mrs W does not have parental responsibility for Child A, nor has an Order been made by the Family Court in support of unsupervised contact. Mrs W wants access to be unsupervised which is inconsistent with the well documented wishes of Child A. The Council must consider Child A’s wishes and is entitled to make a determination in relation to contact arrangements which are consistent with his best interests. I have not identified any fault as part of my assessment in this respect. I did however identify some fault in the way the Council communicated with Mrs W in respect of facilitating contact arrangements. This caused her an injustice and so the Council has agreed to remedy this.
Investigator's decision on behalf of the Ombudsman